Attestation Under the Transfer of Property Act, 1882
β What is Attestation?
Attestation means the act of witnessing the execution of a document by a person (called an attesting witness) who confirms that the signatory has signed the document in their presence.
π Attestation under the Transfer of Property Act, 1882
β Legal Provision:
Attestation is specifically mentioned in Section 59 and Section 63(c) of the Transfer of Property Act, 1882, and also under Section 3 (interpretation clause) which defines βattestedβ.
π Definition of "Attested" [Section 3 β Interpretation Clause]:
"Attested", in relation to any instrument, means that two or more witnesses have seen the executant sign the instrument, or have received a personal acknowledgment from him of his signature, and each of them has signed the instrument in the presence of the executant.
π Key Elements:
There must be two or more witnesses.
Each witness must:
See the executant sign the document, or
Get an acknowledgment of the signature directly from the executant.
Each witness must sign the document in the presence of the executant.
π Where is Attestation Mandatory under the TPA?
| Type of Transfer | Relevant Section | Is Attestation Required? |
|---|---|---|
| Sale of Immovable Property (above βΉ100) | Section 54 + Registration Act | Attestation required under registration process |
| Mortgage by Conditional Sale | Section 58(c) | β Yes |
| Mortgage by Deposit of Title Deeds | Section 58(f) | β No (Attestation not required) |
| Simple Mortgage | Section 58(b) | β Yes |
| Gift of Immovable Property | Section 123 | β Yes (Gift must be attested by at least two witnesses) |
| Transfer by Will | Governed by Indian Succession Act | β Yes (Requires attestation by two witnesses) |
β What Is Not Considered Valid Attestation?
Only one witness: β Invalid
Attestation without the witness being present or without acknowledgment: β Invalid
Witness signs without knowledge of the contents: β Valid attestation is still possible (knowledge of contents is not essential, just the execution must be witnessed)
βοΈ Case Law Highlight:
βοΈ Kundan Lal Rallaram v. Custodian, Evacuee Property (1961 SC)
The Supreme Court clarified that attesting witnesses must either see the executant sign or receive acknowledgment and must themselves sign in presence of the executant.
π Summary Table
| Aspect | Details |
|---|---|
| Meaning of Attestation | Witnessing and signing of a document by 2+ persons |
| Legal Definition | Section 3 of Transfer of Property Act, 1882 |
| Minimum Witnesses | Two |
| Witness Requirements | Must witness signing or get acknowledgment + sign in presence |
| Where It's Mandatory | Gift deeds, simple mortgage, conditional sale mortgage, etc. |
| Where Not Mandatory | Deposit of title deeds, some leases, oral transfers |
| Case Law | Kundan Lal Rallaram v. Custodian (1961) |
β Conclusion:
Attestation is a crucial legal requirement in property transfers under the Transfer of Property Act, especially for instruments like gifts and mortgages. It ensures authenticity and protects against forgery or fraud. Non-compliance can render the document legally invalid. Do write to us if you need any further assistance.
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