Law of Registration
Registration and Attestation Distinguished: Section 3 of the Transfer of Property Act, Animus Attestandi, and the Proviso to Section 67 of the Bharatiya Sakshya Adhiniyam
Attestation and registration are two separate statutory requirements, imposed by different provisions for different reasons, and neither one supplies the other. Attestation is the act of witnesses, who see the executant sign and then sign themselves; it is required only for a gift, a mortgage and a will, and where it is required it goes to the validity of the instrument. Registration is the act of the State, and is required for every instrument within Section 17. A gift deed attested by one witness is void though it be registered, and a registered sale deed needs no attestation at all. The two meet at exactly one place, the proviso to Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, and even there the meeting is narrow.
The two requirements compared, and the one provision in which registration affects proof of attestation
1. What Attestation Is
Section 3, Transfer of Property Act, 1882, definition of "attested" "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 acknowledgment 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; but 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. |
The definition was inserted by the Transfer of Property (Amendment) Act, 1926 and given retrospective effect, with the words "and shall be deemed always to have meant". It was inserted to settle a controversy that had arisen from the English rule, under which an attesting witness had to have actually seen the execution, and which the Privy Council had applied in India. The amendment relaxed that rule by admitting a personal acknowledgment of the signature, and by providing that the witnesses need not be present at the same time.
1. Two or more witnesses. Two is the minimum, and an instrument attested by one is not attested at all.
2. Each must have seen the execution, or received a personal acknowledgment. A witness who neither saw the executant sign nor received his acknowledgment is no witness, whatever his signature says.
3. The acknowledgment must be personal, and from the executant. An acknowledgment conveyed through a third person will not do.
4. Each must sign in the presence of the executant. This part of the definition was not relaxed, and a witness who signs elsewhere has not attested.
5. They need not be present at the same time, so the two witnesses may attest on different occasions.
6. No particular form is necessary. There need be no attestation clause, and the words "witness" or "attested" need not appear.
2. Animus Attestandi
The definition tells you what a witness must have done. The case law adds what he must have intended. A signature on an instrument is attestation only if it was put there for the purpose of attesting, that is, of bearing witness to the execution. A person who signs in some other character, because he wrote out the deed, or identified the parties to the registering officer, or registered it, or was himself a party, is not an attesting witness merely because his signature is on the paper.
📖 M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons, (1969) 1 SCC 573 Facts. The validity of an instrument turned on whether it had been attested by the number of witnesses the law required. The persons whose signatures appeared on the document included those who had signed in capacities connected with its registration and preparation rather than as witnesses to its execution. Held. The Supreme Court held that a person is an attesting witness only where he has put his signature animo attestandi, that is, with the intention of attesting the execution of the instrument. A signature affixed for some other purpose, such as by a person signing in the character of a scribe, an identifying witness, or a registering officer, does not amount to attestation, because the essential condition of an attesting witness is that he should have signed for the purpose of attesting. Ratio. Attestation requires both the act and the intention. The definition in Section 3 supplies the act; the intention to attest is superadded, and without it the signature counts for nothing under the attestation requirement. |
- A party to the deed cannot attest it. The executant cannot witness his own signature, and the person in whose favour the instrument is executed is ordinarily not treated as an attesting witness either.
- The scribe may attest, if he signed animo attestandi, but his signature as scribe is not by itself attestation.
- The registering officer does not attest by registering. His signature is affixed under Sections 59 and 60 in performance of his statutory duty, in an entirely different character.
- An identifying witness under Section 34 is not thereby an attesting witness. Identification and attestation are different acts, done for different purposes, at different stages.
- Whether a particular signatory attested is a question of fact, decided on the position of the signature, the recitals, and the evidence of what the signatory understood himself to be doing.
3. Which Instruments Require Attestation
The instrument | Attestation | Registration |
Gift of immovable property | Two witnesses, Section 123 of the Transfer of Property Act | Compulsory whatever the value, Section 17(1)(a) |
Mortgage where the principal is Rs. 100 or more, other than by deposit of title deeds | Two witnesses, Section 59 of the Transfer of Property Act | Compulsory, Section 17(1)(b) |
Will | Two or more witnesses, Section 63 of the Indian Succession Act, 1925 | Optional, Sections 17(2)(b) and 18(e) |
Sale deed | Not required by statute; universal in practice | Compulsory above Rs. 100, Section 17(1)(b) |
Lease | Not required by statute; must be executed by both parties, Section 107 | Compulsory where Section 17(1)(d) applies |
Partition deed | Not required by statute | Compulsory where the instrument effects the division |
Release or relinquishment deed | Not required by statute | Compulsory above Rs. 100, Section 17(1)(b) |
Agreement to sell | Not required | Section 17(2)(v); Section 17(1A) where Section 53A is relied on |
Power of attorney | Not required; authentication under Section 33 is a different thing | Optional, Section 18(f), subject to State amendments |
⚠ Attestation is not required for a sale deed, and its absence is no defect Almost every sale deed in India carries two witnesses, and parties often assume the law requires it. It does not. Section 54 of the Transfer of Property Act prescribes only a registered instrument, and Section 17(1)(b) only registration. The practice of taking witnesses to a sale is a sensible precaution, because a witness can later depose to execution, but it is a matter of prudence and not of validity. Conversely, the presence of two witnesses on a gift deed is not a formality to be dispensed with: Section 123 makes it a condition of the gift, and a gift deed without it fails however carefully it was registered. |
4. The Two Requirements Compared
Attestation | Registration | |
The source | Section 3 of the Transfer of Property Act defines it; Sections 123 and 59 and Section 63 of the Succession Act require it | Section 17 of the Registration Act and the Transfer of Property Act |
Who performs it | Two or more witnesses | The registering officer, on presentation by a person competent under Section 32 |
When | At execution, or on the executant's subsequent personal acknowledgment | Within four months of execution, Section 23, with the extensions in Sections 25 and 26 |
Where | Wherever the parties are; each witness must sign in the presence of the executant | At the proper office under Sections 28 to 31 |
What it requires beyond the act | Animus attestandi, the intention to attest | Enquiry into execution and identity under Section 34, and admission under Section 35 |
Which instruments | Gift, mortgage and will | Every instrument within Section 17 |
Effect of non compliance | The instrument is bad; a gift attested by one witness is void | The document does not affect the property and is not evidence of the transaction, Section 49 |
Can the other cure it? | No. Registration does not supply attestation | No. Attestation does not dispense with registration |
5. Proof of an Attested Document
Sections 67, 68 and 69, Bharatiya Sakshya Adhiniyam, 2023, in substance 67. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Proviso. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. 68. Proof where no attesting witness found. If no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. 69. Admission of execution by party to attested document. The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. |
1. The general rule is strict. An attested document cannot be used in evidence until at least one attesting witness has been called, where one is alive, within the process of the court, and capable of giving evidence.
2. The proviso is where registration enters, and it is the only place in the law of evidence where registration lightens the burden of proving an attested document.
3. But it excludes wills. A registered will must still be proved by calling an attesting witness, which is why registration proves so little about a will and why the whole of the note on wills turns on that point.
4. And it falls away on a specific denial. Once the person by whom the document purports to have been executed specifically denies execution, the proviso ceases to apply and an attesting witness must be called as in any other case.
5. Section 68 provides for the case where no attesting witness can be found, and requires proof of the attesting witness's handwriting and of the executant's.
6. Section 69 makes a party's own admission sufficient against him, which is a separate and often the shortest route.
The document | Must an attesting witness be called? |
A registered gift deed, execution not denied | No, by the proviso to Section 67 |
A registered gift deed, execution specifically denied | Yes, the proviso ceases to apply |
An unregistered attested document | Yes, Section 67 |
A registered will | Yes. Wills are excluded from the proviso |
An unregistered will | Yes, Section 67 |
Any attested document, where no attesting witness can be found | No, but handwriting must be proved under Section 68 |
Any attested document, as against a party who admits execution | No, Section 69 |
6. Attestation, Execution and Registration in Sequence
1. The executant signs. Execution is complete at that moment, and is the act of the party alone.
2. The witnesses attest, each having seen the signature or received a personal acknowledgment, and each signing in the executant's presence, animo attestandi.
3. The instrument is stamped, before or at the time of execution, under Section 17 of the Indian Stamp Act, 1899.
4. It is presented for registration within four months, by a person competent under Section 32.
5. The officer enquires under Section 34 into execution and identity, and the parties admit execution under Section 35.
6. The officer endorses under Section 58, dates and signs under Section 59, and certifies under Section 60.
7. The document is copied into the register under Section 51.
8. Each step is independent. The document fails if any required step is missing, and no step cures the absence of another.
7. The Errors That Recur
- Supposing that registration supplies attestation. It does not. A gift or mortgage deed attested by one witness is bad, registered or not.
- Supposing that attestation dispenses with registration. It does not. A gift deed attested by ten witnesses transfers nothing unless it is registered.
- Supposing that a sale deed must be attested. It need not be, by statute.
- Supposing that anyone whose signature appears has attested. Animus attestandi is required, and the scribe, the identifier and the registering officer do not attest by signing in those characters.
- Supposing that the proviso to Section 67 covers wills. It expressly does not.
- Supposing that the proviso survives a denial of execution. It does not; a specific denial revives the ordinary requirement.
- Supposing that both witnesses must be present at the same time. Section 3 says they need not be.
8. The Position Stated Shortly
1. Attestation is defined by Section 3 of the Transfer of Property Act: two or more witnesses, each of whom has seen the executant sign or received his personal acknowledgment, and each of whom has signed in the presence of the executant.
2. The witnesses need not be present at the same time, and no particular form of attestation is necessary.
3. A signature is attestation only if put there animo attestandi, with the intention of attesting, M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons.
4. A scribe, an identifying witness, a party, or the registering officer does not attest by signing in that character.
5. Attestation is required for a gift under Section 123, a mortgage under Section 59, and a will under Section 63 of the Indian Succession Act, 1925.
6. It is not required for a sale deed, a lease, a partition deed or a release deed.
7. Registration is required for every instrument within Section 17, whether or not attestation is also required.
8. Neither requirement supplies the other, and non compliance with either is fatal in its own way.
9. The two meet only in the proviso to Section 67 of the Bharatiya Sakshya Adhiniyam, 2023: an attesting witness need not be called to prove a registered document, unless it is a will, or unless execution is specifically denied.
10. Section 68 governs where no attesting witness can be found, and Section 69 makes a party's admission sufficient against him.