Attestation
Introduction
Attestation is an important requirement in property transactions. Certain documents like mortgages and gifts must be attested to be legally valid.
It ensures that the execution (signing) of a document is properly witnessed and verified.
Meaning / Definition
As per Section 3 of the Transfer of Property Act, 1882, attestation means that a document must be signed by two or more witnesses.
Essentials of attestation:
- Each witness must have seen the executant (person signing the document) sign or affix his mark.
- Each witness must sign the document in the presence of the executant.
- There must be intention to attest (clear intention to act as a witness).
- It is not necessary that all witnesses are present at the same time.
Additional points:
- No fixed format is required by law.
- Witnesses usually sign with name, address, and date.
- Signature includes thumb impression.
Modes or Types
Essentials of Valid Attestation
Presence of Two or More Witnesses
- Minimum two witnesses are required.
Actual Seeing of Execution
- Witness must actually see the executant sign the document.
Signing in Presence of Executant
- Witness must sign in front of the executant.
Intention to Attest
- Witness must sign with the purpose of confirming execution.
Competent Witness (Sui Juris)
- Witness must be legally capable (person of sound mind and major age).
Nature of Attestation
- Attestation only confirms that the document was signed.
- It does not mean the witness knows the contents of the document.
Important Case Law
- Shamu v. Abdul Khandir (Privy Council)
- Held that the attesting witness must have actually seen the execution of the document.
Distinction / Comparison
| Basis | Attestation | Registration |
|---|---|---|
| Purpose | Confirms execution (signing) | Records document officially |
| Requirement | Witnesses required | Done before registering authority |
| Knowledge of Content | Not required | Not necessary |
| Legal Effect | Validates execution | Gives legal recognition |
Practical Example
- A person executes a gift deed in front of two witnesses who sign in his presence. This is valid attestation.
- If witnesses sign later without seeing the executant sign, attestation is invalid.
- A witness signing without intention to attest does not satisfy legal requirement.
Summary
- Attestation means witnessing the execution of a document.
- At least two witnesses are required under the law.
- Witnesses must see the executant sign and must sign in his presence.
- Intention to attest is essential.
- Witnesses need not know the contents of the document.
- Attestation confirms execution, not validity of content.