Thursday, May 30, 2024

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ATTESTATION

Write a short not on Attestation?

As per section 3 of the Transfer of Property Act, Attesting in respect of an instrument means that the documents must be attested by two or more witness each of whom has seen the executant sign or affix his mark to the document. Further each of them have signed the instrument in the presence of the executant. Following are the essentials of a valid attestation-

  1. Attestation is confined only to non-testamentary instrument.
  2. Minimum two attesting witness are required for attestation.
  3. Three modes of attestation are recognised
    a) Each sees the executant signing or fixing mark
    b) Each sees some other person signing in the presence and by the direction of the executant
    c) Each has received from the executant the personal acknowledgement of executant sign, of executant mark, sign of one who signed for the executant in his presence and by his direction.
  4. Each witness signs the instrument in presence of executant
  5. Presence of both or all attesting witnesses one and at the same time is not essential.
  6. No particular form of attestation is prescribed.

In the case of Sant Lal v. Kamla Prasad, court held that each witness must sign the instrument only after the execution is complete, otherwise it will not be a valid attestation.

In the case of Kundan Lal v. Musharaf Begum, the court held that the executant was a pardanashin lady and was sitting behind a thin curtain when the attestors signed. The court held that attestation was valid as the executant could have seen the witnesses, even is she actually did not actually see them, through the curtain. It is tantamount to say that an attesting witness should sign his name in the presence of the executant.

Attested witness
The witness should have put his signature animus attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his sign. If a witness put his signature on the document for any other purposes, he is not an attesting witness. There must be animus attestandi for a valid attestation.

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