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This article has been written by Amay, a student of pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction

The definition of attestation is given in section 3 of the Transfer of Property Act 1882. The intention behind including this provision was to ensure that the transfer was done with free will of the executant. No legislation in India provides the requirement of the witness to read the whole document being attested, thus the witnesses need not have to go through the document and ask each and every typical fact of the transfer. The witnesses can be called to the court to prove that when they proved their mark to show that the transfer was a valid transfer, but here there is no need to call either the two witnesses, or all the witnesses, at least one person can be called to court as a witness to show the sanctity of the transfer. 

This provision for attestation was not originally drafted in the manner it is today. Initially, under 1865 Act, there was a difference in this provision for attestation. The part relating to personal acknowledgement was not present, and this part was added through an amendment. Thus the presence of witnesses was disposed. There are two parts to the attestation. First is where the attesting witnesses can be physically present then there are at least two witnesses who should have seen the executant sign the document of transfer. The second part is with respect to situation when witnesses were not physically present at the time of execution of the document. In such a situation, attestation can still be valid, if the executant herself gives a personal acknowledgement of the signature to the witnesses. In this article, the author will reflect upon the court’s understanding on the issue of attestation and also the issue regarding ability of a person being illiterate or having disabilities to be witnesses or attest a document in a valid manner. 

Inception and Amendments

This concept of attestation stems from the English law. But the meaning and scope that has been attached to this concept differs in India, than what was there originally under the English Law. The meaning of attestation according to the English law is that the attesting witness has to be physically present at the time of the signing of the document by the executor. The definition that has been used in Section 3 of Transfer of Property Act is different than what is there in the English law on two grounds. First it does not require the attester to be physically be present at the time of the signing of the document by the executor.

The second difference is that the Indian law does not require the attester to actually look and see the execution of the document. The English law both the witnesses to be present at the time of execution and actually see the signing themselves. The Indian law has done away with this requirement. This was highlighted in the case of Shamu Patter where the question was exactly that whether the attesters have to be physically present and actually see the execution of the document. The court referred to the cases of Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee and Ramji v. Bai Parvati and concluded that the attester has to be physically present and see the execution to be a valid attesting witness. The court arrived at this reasoning because the court refused to accept the argument that the word attestation has to be given the same meaning as it is given in the Indian Succession Act. 

It was only in the case of Nepra vs Sajer Pramanik & Anr that the court overruled the Shamu case by applying the amendment act 27 of 1926, which added the phrase “attestation by a person who has received an acknowledgment of the execution by the executants” to be included as the meaning of the word attestation mentioned under section 3 of transfer of property act. It was initially understood that the object of attestation is to ensure that a person can testify that the deed was voluntarily signed, but it was clarified later in the case of Gomathi v Krishna that the actual object was that there was no fraud and the execution was done when the person could have given a valid consent. 

In addition, the Indian jurisprudence has developed to a certain extent to read in qualifications that has to be fulfilled for a person to be able to be a valid attester. Earlier the general rule was that a party to a document could not herself be the attester”. This rule was developed when the court differentiated between an interested person and party to a document, and concluded that an interested party or a person interested can attest. This rule further developed over time and the new standard is that the attester has to be a person who can enter into a contract. 

Apart from what has been established in the Indian jurisprudence, there is an increased debate in the international circuit regarding the use of technology for attestation. This essentially means the use of video cameras and virtual signatures to give a valid attestation. It has been held in the Indian courts that it is necessary for the attester to affix sign or mark on the document, thus merely having seen the execution through video will not be enough. But if the document is attested by affixing mark or sign by virtual signature, then the requirement would be fulfilled; this is still not something that the court has discussed, thus a conclusive statement cannot be made regarding the same. 

If the court strictly follows the ruling of foreign jurisdictions on this matter, then the Indian courts will rely largely on the recent judgement of R v. HMRC where Justice Underhill explained that attestation would require the attesting mark or signature to be part of original document itself and thus video conferencing and virtual signatures would not be sufficient.

In Australia, technology has its combined effect on law as well. Here, the court has recognized the importance of video conferencing by allowing its use in attestation cases where it is used by indigenous communities to overcome physical and geographical barriers. Thought the court has allowed this approach, the ADLS is critical about this approach and has warned that use of technology like video conference as a means to dodge geographical barriers can have drawbacks. 

In the Charanjit Kaur Nagi v.Government of NCT Delhi the court in their judgement, commented on the use of video conferencing for attestation, the said that it is open for a suitable mechanism to be created with the collaboration of technology by introducing video conferences, positive identification and attesting of signature or mark. The court did not approve of attestation via video conferencing in this case and asked that the husband who was in US has to attest the document in presence of a consult. Thus they left the job for the legislatures to include it in future, but diverted the attention to the need for technology to be integrated to ensure efficiency. 

It is also the concern that video conferencing does not always show the whole scenario. It could be the case that only a part is visible and not the whole, like the face of the attester is visible but whether there is someone threatening the witness or the same with the executor. On the other hand the argument can be made that the personal acknowledgement clause allows the use of technology as physical presence as a necessity for attestation and the requirement of seeing the executor sign the document. Also it was argued in the Charanjit case the court understood that at the time of the enactment, the technology had not advanced to such extent, hence the drafters could not have intended video conferencing to be included. Thus arguments can be made from both the sides, and it is up to the courts to balance the requirements and reach a conclusion. 

Effects of disabilities on the law regarding attestation

The Indian courts have long tried to find way to be more inclusive not just with respect to gender, but also with respect to people who are specially challenged or illiterate. India is a country where majority of the population is not highly educated and to a large extent suffers from illiteracy, in such a case, for law to be applicable equally to all individuals like out constitution envisages, the prerogative is on the court and legislators to interpret the law and create law respectively, in such a manner that the whole population can apply and adhere to it. Due to this finding, the court has given varying interpretations to the section 3 of Transfer of Property Act so that it can be made more inclusive and widely applicable. Over various cases, the general rule has become that there are no disqualifications for specially challenged person to attest to a document. This understanding means that anyone can be an attesting witness, but the jurisprudence developed by cases and court’s interpretation suggests otherwise. The interpretation and cases have put a certain standard that has to be fulfilled before a person can attest a document in a valid manner. 

In the case of Sundar Lal v D D C Sitapur case, the person who gave the attestation to the document was blind. In this case the court said that the blind person could not have attested the document unless the person is given personal acknowledgement by the executor. This shows that the current transfer of property act is made in such a manner that disabilities do not prevent an individual from being a valid attestation to the document. 

Even pardanashin women can give attestation to a document. But this was not the position since the beginning. There were different cases which clarified the stance on the attestation by pardanashin women. In the case of Padarth Halwai, a pardanashin woman was allowed to give a valid attestation to the document. The facts of the case were that the executor could be seen through curtain and the voice of the executor who was a pardanashin woman, could be identified. Thus when attestation was given, the attestation was held to be a valid attestation as per section 3 of the transfer of property Act. 

In the Lala Kundan Lal case, the facts were such that testator was a pardanashin woman who was seen by her husband and the attestation through the curtain. She took her hand out of the curtain and out her thumb mark. This was valid execution and attestation on this basis was valid. 

In Rao Ganga Singh case, the woman signed the document behind the curtain and after the signing of the document the son of the woman brought the document to the witness so that attestation could be done. The court in this case held that the attestation was not valid as the acknowledgment was not given by the executor herself. 

By these three cases we can draw a clear picture with respect to pardanashin woman being executor and them being attester for execution of a document. The position can said to be that, if the person executing the document is a pardanashin woman, then it is essential that the attester should see the woman sign the document, it is acceptable that the attester could identify the woman seeing through something or recognise her voice, but there has to be recognition to make sure that there is not fraud. If attester is a pardanashin woman, then the executor has to recognise the woman and then see her affix mark, even if it involves seeing through a barrier, but the barrier should be such that it can be seen who the person is. Even a blind person can attest when she gets personal acknowledgement from the executor that the execution was made out of free will. The only necessity is that the blind person should be able to identify that the person giving the acknowledgement is the executor itself.

Conclusion

The Indian provision of transfer of property relating to attestation is adopted from British law, but due to the amendments passed in India, the provision has a wider application in India. The amendment has done away with the requirement of executor being there at the time of signing of the document. Thus it has a wider application. 

Attestation does not refer to the mere signing of the document to attest it but a valid attestation requires the intention to attest. This is also called animo attestandi. There are numerous cases which have explained the applicability of this term, and the understanding is that an individual can give a valid attestation if she, at the time of affixing mark, intended to be a witness to the fact of execution of the document and was aware that the document was executed without any undue influence or coercion on the executant. If the witness does have the mental capacity to or intention to corroborate these, till then the individual cannot be said to have given a valid attestation. 

The amendment apart from having wider application, has also allowed people with disabilities to give proper attestation. Even a person with visual disability can attest without having to fulfil the earlier requirement of seeing the executor execute the document as now a personal acknowledgement of the execution by the executor to the witness is also accepted for a valid attestation of the document, only requirement is that the witness should identify that the acknowledgement is given by the executor itself. 

Apart from this, now there is a discussion of including video conferencing and other technological advancements for attestation. In UK, the courts have refused to include such technologies, but the understanding of the British is different from ours and this is evident due to the amendment in our law. In addition to this, a favourable view is taken by Australia and has appreciated the application in cases where the location is in a geographically remote place. Thus the debate in India will have the opportunity to see the use and misuse of such an approach when it decides to incorporate the changes. 


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