Creation of document for transfer of property:
Generally, a rough sketch or a format is being drawn up so as to create a document for the transfer of property. A draft would include all the main points that would be defining the terms and conditions of the transaction.
Once the draft has been prepared it was be presented to the parties who would be probably reading the same and then would be signing the document. Once they have signed the document it would be called as the execution. In some simple words, the process of signing the document by the parties is called as execution.
Attestation once the document has been executed the law requires that during execution it should be witnessed by the witnesses. And when the witnesses sign the document, it is called as attestation
Registration of document – When it is attested it would be presented before the registrar and after parties have admitted the signatures on document then the registrar would be entering it into his books and once it is done the document stand registered.
Attestation: It is necessary under the law that two persons must affirm or become witness to the fact that the executant, and nobody else, has written or signed the deed of transfer. This act of giving evidence or becoming witness is called attestation and when these persons have done so, the deed is said to have been attested. The witness are called attesting witness.
Objective of Attestation
Attestation of a document ensures the authenticity or truthfulness of its execution. The object of attestation is twofold.
- It confirms that executant and none else has executed the document.\
- It also confirms that the executant has executed the document with free consent and there was no force, fraud or undue influence.
There is no other purpose behind attestation. By attesting a document, the attesting witnesses do not confirm that they have knowledge of the contents of that document.’ Nor they are supposed to have given consent to the transfer under the document.
Animo Attestendi Means intention that is, there must be a knowledge not of the content but he knows that the document whether it was made in the right direction. Witness must be consciously present and he must be aware about the transaction that who is executant or who is other witnesses at all held in the case of Sundar Kanwar vs Shah Udey Ram 1944.
Who can Attest ?
Any two persons who are
- Of the age of majority
- Possess sound mind, can act as attesting witnesses.
Since attestation is a special act of certifying the signature of the executant, any other person e.g. the scribe or the typist cannot be presumed to have attested the document.
Who cannot Attest ?
A party to the transaction cannot be an attesting witness. The parties to the transfer are transferor and the transferee. The transferee cannot attest the document. If there are several transferors or several transferees then neither any one of the transferors nor any one of the transferees may act as attesting witness. Attestation by any party to the transaction is invalid. However, a person who is not a party to the transaction but is a party interested in the transaction’ is competent to become an attesting witness.
Illustration: For example, where X takes some loan from Y by mortgaging his immovable property the parties to the mortgage deed are X (mortgagor) and Y (mortgagee). Now, if Y who lends money has no sufficient money with him and takes some money from his brother Z and gives the full amount to X then Z would be a person who is interested in the mortgage deed although he is not a party to it. Z can act as attesting witness of the mortgage deed.
Above illustration was applied in the case of Kumar Harish Chandra vs Bansidhar Mohanty 1965.
- A person who is authorised to transfer the properties of another under the power of attorney executes the deed of transfer himself on behalf of the person who appoints him cannot be an attesting witness to the document which he has executed under the power of attorney as he himself has party to it.
Essential elements of Attestation—
Essentials elements are as follows
- There should be signature of two or more witnesses on instrument in tl presence of executant;
- Each attesting witness must
- Each of the witnesses has seen the transferor or executant sign or affixing his mark to the instrument,
- Each of the witnesses has seen some other person making sign on instrument in the presence and by the direction of the transferor or executant
- Each of the witnesses has received from the transferor or executant a personal acknowledgement of his signature or mark.
- It is not necessary that more than one of such witnesses shall have been present at the same time.
- No particular form of attestation is necessary.
The question arises that how can a valid attestation takes place, without seeing the person sign?
- The answer has been given in the section itself which provides that one can receive the information from executant of his signature and the signatures of the other persons. In simple words, attestation can take place either by witnessing or by receiving information.
In the case of ML Abdul Jabbar versus Venkat Shastri AIR 1969: It was held there must be an effective intention or knowledge.It was also held that Sub-Registrar or the Registering Officer who registers the document cannot be presumed to have acted also as attesting witness.