The present article aims to shed light on a question that has not received the attention it deserves and also contributed to inconsistent judicial decisions: why is attestation not required for all the transfers under the Transfer of Property Act, 18821?
Attestation under the Transfer of Property Act, 1882
Within the context of the Transfer of Property Act, 1882 (hereinafter “the Act”), attestation is a vital step to ensure that a deed has been executed property. Attestation by at least two witnesses confirms that the document is executed with free consent and there are no vitiating factors (fraud, coercion, etc.). Section 32 of the Act lays down the essentials of a valid attestation.
In practice, it is common to see attestation of all kinds of transfer under the Act (sale, mortgage, lease, exchange and gift). However, the provisions of the Act do not paint such a simple picture. The requirement of attestation is explicitly mentioned in two kinds of transfer, mortgage and gift.
Section 593 of the Act contains the formalities required in order to effect a mortgage. The relevant part reads as follows:
59. Mortgage when to be by assurance.—Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
(emphasis supplied)
Similarly, Section 1234 of the Act mandates the following formalities for a gift of immovable property:
(emphasis supplied)
In contrast, the formalities required for sale do not explicitly mention attestation.5 The relevant part of Section 546 states the following:
54. Sale how made.—Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
To sum up, while mortgage (when principal money is hundred or more) and gift (of immovable property) require attestation and registration, sale in most cases can be effected only through registration. Since attestation of sale deed is a common practice, this omission is sometimes not given due importance.
Judicial conflict and implications
In Rattan Singh v. Nirmal Gill7, the Supreme Court while examining the validity of a sale deed stated:
55. … it may be noted that since the sale deed requires attestation by two witnesses … the same has to be proved as per procedure laid down under Section 688 of the 1872 Act.
The above decision flies in the face of other Supreme Court decisions that have categorically held that a sale deed does not require attestation. In Bayanabai Kaware v. Rajendra9, the Court held that:
18.… the execution of the sale deed does not need any attesting witness like the gift deed, which requires at least two attesting witnesses at the time of its execution as per Section 123 of the Transfer of Property Act, 1882.
A similar observation was made in Hans Raji v. Yosodanand10.
These latter decisions underline the importance of not confusing common practice with a legal mandate. They also point towards the fact that the requirement of attestation is not inconsequential. The question of whether a document is legally required to be attested is directly tied to the manner in which the document can be proved under the provisions of the Evidence Act, 1872. For a document required to be attested, Section 68 of the Evidence Act is the operative provision. On the other hand, for documents which are not mandated by law to be attested, other provisions of the Evidence Act, 187211 have to be relied upon (for example, Sections 6112, 6213, 6314, 6715, etc.).
These implications were conspicuous in the abovementioned decisions. In Rattan Singh case16, the Court sought to prove the sale deed with the help of Section 68 of the Evidence Act, 1872 as it assumed (incorrectly) that a sale deed is legally required to be attested. In contrast, in Bayanabai Kaware case17, the Court found no application of Section 6818.
The reason behind mandating attestation only in specific transfers
Within the confines of the Transfer of Property Act, 1882 only mortgage and gift are required to be attested. There is no legal mandate to attest sale, lease and exchange deeds. One might argue that since all the deeds (above a particular threshold) are required to be registered, the fact that for some of them there is no legal mandate of attestation does not make a lot of difference. After all, during the registration process, the Sub-Registrar is required to authenticate the execution of the document as per Section 3419 of the Registration Act, 1908. This is similar to the objective served by attestation.
However, besides the evidentiary implications, this oversimplifies a conscious choice made by the drafters. No doubt, registration and attestation serve an overlapping goal of safeguarding execution. Nevertheless, by providing an extra layer of protection for mortgage and gift, the drafters were keenly aware that these two transfers are distinctly situated.
While all of these five transfers convey some interest in property to the transferee, there is a sense of parity in the transactions involving sale, exchange and lease. The transferor gives up rights in the property for some monetary benefit or rights in another property. Mortgage and gift stand on a different footing. In a lot of cases, a person mortgages his or her property in a moment of dire financial need. The value of the property is many times more than the amount of debt taken by the mortgagor. This reality of unequal bargaining positions informs the equitable right of redemption and the maxim “once a mortgage, always a mortgage”. The maxim gives effect to the statement that “necessitous men are not, truly speaking, free men”.20
Likewise, in gift, a person transfers his or her property without any consideration. To reflect the rather unique nature of this transfer and the possibility of a lack of free consent, the definition of gift under Section 12221 of the Act makes voluntariness to be a precondition of a valid gift. Due to different reasons, there is a greater chance for the existence of factors vitiating consent in mortgage and gift.
That is why the law is extra cautious in these two transfers and it expresses the same in the form of mandatory attestation by at least two witnesses. Unlike registration, attestation generally takes place at the same time when the transferor executes the deed. The presence of external members (other than the parties to the deed) provides additional safeguard to ensure that transfers are entered into freely.
A richer understanding of the dynamics that separate mortgage and gift from other transfers would be useful in understanding the different choices made in the Act with respect to attestation. By appreciating these nuances, courts can ensure more consistent judicial decisions, thereby offering much-needed clarity to parties involved in such transactions.
*Assistant Professor, School of Law, UPES Dehradun. Author can be reached at: alindgpt@yahoo.co.in.
1. Transfer of Property Act, 1882.
2. Transfer of Property Act, 1882, S. 3.
3. Transfer of Property Act, 1882, S. 59.
4. Transfer of Property Act, 1882, S. 123.
5. The same is the case for lease and exchange under the Act.
6. Transfer of Property Act, 1882, S. 54.
12. Evidence Act, 1872, S. 61.
13. Evidence Act, 1872, S. 62.
14. Evidence Act, 1872, S. 63.
15. Evidence Act, 1872, S. 67.
18. Evidence Act, 1872, S. 68.
19. Registration Act, 1908, S. 34.
20. Vernon v. Bethell, (1762) 1 Eden 113.
