Transfer of Property Act (TPA)
TPA Attested Meaning under Section 3
'Attested' under Section 3 of the Transfer of Property Act: Essentials of Valid Attestation, Animus Attestandi and How It Differs from Execution and Registration
Attestation is the formality that turns a signature into a witnessed signature. The Act requires it for only two of its own transactions — the mortgage and the gift — but where it is required it is mandatory, and a document that fails the definition in section 3 is not saved by registration, by stamp, or by the honesty of everyone concerned. The definition was inserted in 1926 to settle a conflict of decisions on a single question: must an attesting witness actually see the executant sign? The answer, and the alternative the section supplies, is the whole of this topic.
Figure 1: The three stages of a valid attestation, what the section does not require, and the defects that are fatal
1. The Definition and Its History
Section 3, TPA — 'attested' 'attested', in relation to an instrument, means 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 by the amending Act of 1927. It resolved a long conflict between the High Courts on whether a witness who had merely received the executant's acknowledgment, without seeing him sign, could be an attesting witness. Under the definition as it now stands, he can.
2. The Essentials
- Two or more witnesses. Two is the minimum; a document attested by one is not attested at all.
- Each witness must have seen, or received an acknowledgment. Each must have (i) seen the executant sign or affix his mark, or (ii) seen another person sign in the executant's presence and by his direction, or (iii) received from the executant a personal acknowledgment of the signature or mark. An acknowledgment conveyed through a third person will not do.
- Each witness must sign in the presence of the executant. The requirement runs the other way from limb (ii): the executant need not see the witness sign in any technical sense, but the signing must take place in his presence.
- Animus attestandi. The witness must sign for the purpose of attesting — that is, of bearing witness to the execution. A person who signs in some other character does not become an attesting witness merely because his signature happens to be on the page.
- No particular form. No formula, no heading, and no statement of purpose is required; the signature alone, given with the necessary intention, is enough.
- The witnesses need not be present together. The concluding words of the definition put this beyond argument: one may attest in the morning and the other in the evening.
3. Animus Attestandi: The Scribe and the Registering Officer
The leading case In M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri, (1969) 1 SCC 573, the Supreme Court held that to be an attesting witness a person must have put his signature animo attestandi — with the intention of attesting the execution. A person who signs in some other capacity, such as the scribe who wrote the document, or the registering officer who endorses it, or an identifying witness before the Sub-Registrar, is not an attesting witness unless it is shown that he signed with that intention. The point is practical and recurring: a mortgage deed signed by the executant, the scribe and one witness is not attested by two witnesses, and the mortgage fails for want of the formality section 59 requires. |
The converse is also settled: an attesting witness need not know the contents of the document. He attests the signature, not the transaction, and it is no objection that he had not read a word of what he witnessed.
4. Where Attestation Is Required
Transaction | Attestation | Provision |
|---|---|---|
Mortgage (other than by deposit of title deeds) | Required — at least two witnesses | Section 59, TPA |
Gift of immoveable property | Required — at least two witnesses | Section 123, TPA |
Will | Required — two or more witnesses | Section 63, Indian Succession Act, 1925 |
Sale of immoveable property | Not required | Section 54, TPA |
Lease of immoveable property | Not required | Section 107, TPA |
Exchange | Not required, save where it is effected in the manner of a sale | Sections 118 and 120, TPA |
5. Attestation, Execution and Registration Compared
Point | Execution | Attestation | Registration |
|---|---|---|---|
Who acts | The executant — the party making the transfer | Two or more witnesses | The registering officer, on presentation by a party |
What it establishes | That the party has made the document his own | That the signature of the executant was witnessed | That the document was presented and entered in the public register |
When | First in time | At or after execution, never before it | After execution, within the time allowed by the Registration Act |
Required for | Every instrument | Mortgage (s. 59), gift (s. 123), will (s. 63 ISA) | Sale, mortgage, lease and gift as prescribed by ss. 54, 59, 107, 123 and s. 17, Registration Act |
Effect if missing | There is no document at all | The transaction fails for want of the statutory form | The document does not affect the immoveable property and is not evidence of the transaction — s. 49 |
Does it prove the contents? | It binds the executant to them | No — the witness need not know the contents | No — registration certifies presentation, not truth |
6. Proving an Attested Document
Where a document is required by law to be attested, the law of evidence adds a further requirement: it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there is an attesting witness alive and subject to the process of the court. This is the rule in section 68 of the Indian Evidence Act, 1872, carried forward into the Bharatiya Sakshya Adhiniyam, 2023, with the familiar proviso that it does not apply to a registered document other than a will unless its execution is specifically denied. The consequence for practice is that the attesting witnesses to a mortgage or a gift must be chosen with an eye to the day, years later, when one of them will have to be produced in court.
7. Defects That Are Fatal, and Defects That Are Not
The defect | Effect |
|---|---|
Only one attesting witness | Fatal — the definition requires two |
A witness who neither saw the execution nor received a personal acknowledgment | Fatal as to that witness; if it leaves fewer than two, the document is not attested |
A witness who signed before the document was executed | Fatal — attestation cannot precede execution |
A scribe or registering officer who signed without animus attestandi | Not counted as an attesting witness |
The two witnesses attested at different times | Immaterial — the section expressly permits it |
No form of attestation clause used | Immaterial — no particular form is necessary |
The witness did not read or know the contents | Immaterial — he attests the signature only |
The executant signed by a mark rather than a signature | Immaterial — the section covers affixing a mark |
Retention aid Two witnesses, each of whom either saw it or was told of it by the executant himself, and each of whom signed in his presence, meaning to bear witness. The two easiest marks in this topic come from the same case: the scribe is not a witness, and the witness need not know what he is witnessing. |
8. Landmark Cases
📖 M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri, (1969) 1 SCC 573 Held: To be an attesting witness a person must have put his signature animo attestandi, that is, with the intention of attesting the execution of the document. A person who signs in some other capacity, such as the scribe, the registering officer, or an identifying witness before the Sub-Registrar, is not an attesting witness unless it is shown that he signed with that intention. Ratio: Animus attestandi is essential; a signature placed for another purpose does not count as attestation. |
📖 Kumar Harish Chandra Singh Deo v. Bansidhar Mohanty, AIR 1965 SC 1738 Held: An attesting witness need not know the contents of the document. He attests the signature of the executant and not the transaction, and it is no objection that he had not read the deed. Ratio: Attestation certifies the signature, not the contents. |
9. Related Topics and Provisions
- 'Instrument' under Section 3 — the document to which attestation attaches, and its registration
- Section 59, TPA — the mode of making a mortgage, and the attestation it requires
- Section 123, TPA — the mode of making a gift of immoveable property
- Section 63, Indian Succession Act, 1925 — attestation of a will, and how it differs
- M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri, (1969) 1 SCC 573 — animus attestandi
- Proof of attested documents — section 68, Indian Evidence Act, 1872, now in the Bharatiya Sakshya Adhiniyam, 2023