attestation and notice - transfer of property

1. Transfer of property
Topic 2.
Attestation and Notice

2. We are here…
1. Movable and immovable property
2. Attestation and notice
3. Actionable claim
4. Transfer of property
5. Restraints on transfer
6. Rule against perpetuities
7. Vested and contingent interest
8. Doctrine of election
9. Sale of immovable property

3. Notice

4. Relevance
• Properties are transferred by way of execution of
documents. We know that, as per Contract Act,
free will is necessary for a Contract to be valid.
• How does one ascertain that a person executed
a document on his free will?
• This is where attestation comes into picture.
• TP Act requires attestation, but not for all
documents.
• Mortgages and gifts need to be attested
• Documents effecting sales, exchanges and
leases need not be attested

5. Attest means
• Executant – a person who has a certain right
over a property and makes a document… to
make changes to his right over that property.
• Execute – the act of an executant writing and
signing on an instrument.
• ATTEST – As per TP Act, - that a person has
signed the document by way of testimony of the
fact that he saw it executed.
• The party who sees the document executed is a
‘witness’

6. For example
•
•
•
•
Shashi is the owner of a land in Thiruvanantapuram.
He wishes to mortgage the land in favour of Antony.
Shashi wants Sunanda to be a witness to this event.
While Shashi executes the mortgage deed in favour of
Antony… Sunanda being a witness to the event ‘attests’
over the mortgage deed.
• Shashi is the executant
• Sunanda is the witness
• Sundannda has attested the document. The attestation
is a testimony that Shashi executed the document in her
presence and out of his free will. This prevents coercion.

7. Sec. 3 of TP Act defines attestation
•
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 acknowledgement 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

8. Confusing?
• The language of Sec. 3 of TP Act is very
confusing.
• So, what we do is…
• Split up the various elements in the
provision and study them as “requisites of
a valid attestation”.

9. Requisites of a valid attestation
1.
2.
There must always be two or more witnesses
It is ordinarily necessary that each witness must see –
a)
b)
c)
3.
The executant sign / affix his mark (thumb impression) to the
instrument
Or some other person sign the instrument in the presence,
and by the direction, of the executant
Or the witness should have received from the executant a
personal acknowledgement of his (executant’s) signature /
mark or of a person signing on the behalf of the executant.
Thus, an attesting witness need not witness the actual
execution of the deed, in as much as he can attest on
the acknowledgement of execution by the executant
himself.

10. Requisites of a valid attestation
4.
5.
6.
7.
But, each witness must sign the instrument in the
presence of the executant
Further, each witness must sign only after the execution
is complete, otherwise it will not be a valid attestation.
[Sant Lal v. Kamla Prasad (1952) SCR 116]
All the attesting witnesses need not attest at same time.
No particular form of attestation is necessary. Thus, the
signature of an attesting witness need not appear in any
particular place. Thus, even if the witness signs the
document against the signature of the executant, where
he has executed the document, it is sufficient and
adequate attestation of the document [Kaderbhai
Ismailji v. Fatimabai]

11. Cases
•
•
•
•
Bhagwat v Gorakh
Kundan Lal v. Rofi Begam
Abdul Jabbar v. Venkata Sastri
Girja Dutt v. Gangotri Singh
• Leading Case
Kumar Harish Chandra Singh Deo v. Bansidhar
Mohanty: No provision of law debars money
lender from attesting a deed which evidences
the transaction where under the money was lent

12. Effect of invalid attestation
• Effect of invalid attestation – makes the deed of transfer
of property invalid.
• No property passes under it.
• Thus the document cannot be enforced in a court of law
• If the document is for mortgage, it can neither operate as
mortgage, nor as charge. But still it is admissible as
evidence of a personal covernant to repay debt [ Krishna
Kumar v. Kayashta Pathshala ]
• Leading Case: Padarth Halwai v. Ram Narain: Transfer
of property by Pardanashin woman, when the attesting
witness could not see her but could hear her voice; the
attestation was held valid.

13. Notice

14. Notice
• Notice means knowledge of a fact.
• In law, knowledge of a fact, affects one’s legal rights and
liabilities.
• Sec. 3 of TP Act enumerates 3 kinds of notices
• A person is said to have “notice” of a fact –
– When he actually knows that fact (actual / express notice)
– When, but for wilful abstentation from an enquiry or search which
he ought to have made, or gross negligence, he would have
known it (constructive or implied notice)
• Thus we have two types of notice:
– Actual notice
– Constructive notice
• Next, we discuss both in detail

15. Actual notice
• A person is said to have actual notice of a
fact, when he actually knows it
(what a definition, deserves an award!)
• Notice must be definite to constitute an
actual notice
• Vague reports / rumours do not amount to
notice

16. Actual notice
• Example: a legal notice given in a newspaper
that a certain property is under litigation, hence
should not be dealt with. This is a definite notice.
If one has read this, it is deemed that the person
reading this has an actual notice
• Example: a gossip being done in a tea shop
where some people discuss that a certain
property’s title is defective. This news is not
definite and not given by any reliable source.
Hence, it is not a notice at all.

17. Constructive notice
• Where a person ought to have known it.
• A person has constructive notice of all
facts of which he would have acquired
actual notice of all facts of which he would
have acquired actual notice had he made
those enquiries which he ought
reasonably to have made.

18. Legal presumption of constructive
notice arises in these circumstances
• 1. Wilful abstention from an enquiry or
search
• 2. Gross negligence
• 3. Registration
• 4. Actual possession
• 5. Notice to agent

19. Cases
• Ahmedabad Municipal Corporation v. Haji
Abdul Gafoor
• Md. Mustafa v. Haji Md. Isa
• HN Narayanaswamy Naidu v.
Deveeramma
• Ram Niwas v. Bano
• ML Abdul Jabbar Sahib v. H Venkata
Sastri

20. The contents of this file have been compiled from various
reliable sources. Due care has been taken to avoid
errors. The author of this work takes no responsibility for
the consequences arising out of error. The reader is
advised to cross check with the text books and the Act in
case of confusion. You are allowed to share this file with
your friends without making changes to the contents of
this file. However, you are not allowed to exploit this
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- Gagan K.
University of Mysore
gagan555@gmail.com