Section 3 of The Transfer of Property Act, 1882.
“Attested”, 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.
The definition of the word “Attested” was inserted by the Transfer of Property (Amendment) Act, 1926 (27 of 1926), and was further amended by the insertion of the words “and shall be deemed always to have meant” by the Repealing and Amending Act, 1927, to show that the definition had retrospective effect.
In English law attestation implies that the attesting witness was present at execution and can testify that the deed was executed voluntarily by the proper person. Before 1912 the Courts in India were sharply divided as to whether the word is used in this narrow sense in the Transfer of Property Act or whether it includes attestation on admission of execution as in the Indian Succession Act. The Allahabad and Bombay High Courts put the latter which was the wider construction upon the word, while the Madras and Calcutta High Courts favoured the narrower construction, subject perhaps to relaxation in the case of pardanashin women. In 1912, however, the Privy Council in the case of Shamu Patter v. Abdul Kader held that an attesting witness must have seen the executant sign. The Transfer of Property (Validating) Act 26 of 1917 was passed to validate instruments attested on admission of execution in reliance on the Allahabad and Bombay decisions. Shamu Patter's case was followed until the enactment of Act 27 of 1926 which inserted in the Transfer of Property Act a definition including attestation on acknowledgment of execution. This Act being declaratory of the law was held in the a case to be retrospective. In other cases, however, it was said that the words “ attest means ” cannot have the same meaning as “ attest always meant”, and the Legislature by Act 10 of 1927 further amended the definition by adding after the word “ means ” the words “ and shall always be deemed to have meant.” This makes it clear that the definition is retrospective. A party to a deed is not competent to be an attesting witness, but if not a party to the deed a person interested in the transaction may be an attesting witness. An illiterate witness may attest the signature of the executant by making his mark.
The section requires that the attesting witness should have signed in the presence of the executant. Where the executant, a pardanashin lady sitting behind curtain put her hand out and made her thumb impression on the deed in sight of the witness and then her husband signed and then the attesting witnesses signed as attesting witnesses the Privy Council have held that the witnesses signed “in the presence of the executant” and the document was duly attested. It is also necessary that the attesting witness should have signed for the purpose of authenticating the signature of the executant, and not as a scribe or as a person merely indicating his consent to the transaction. A scribe however, may perform a dual role. He may be an attesting witness as well as the writer. The fact that he signed as an attesting witness must be properly proved. Where, however, in the presence of the executant it was stated that he had executed the deed and the executant did not contradict such statement, it was held that there was a sufficient acknowledgment. It is not necessary that the attesting witness must sign at any particular place. The signatures of the Registering Officer and of attesting witnesses on the Registration endorsement, although made alio intuitu to satisfy the requirements of the Registration Act, have been held in some cases to be a valid attestation, if affixed in the presence of the executant. But in some it has been held that it is not a valid attestation.
Mere attestation does not effect an estoppel, for attestation does not fix an attesting witness with knowledge of the contents of the document. Attestation does not of itself imply consent; though there may be circumstances which show that the attesting witness had knowledge of the contents of the document he attested and consented. An attesting witness is not estopped by his mere signature unless it can be established by independent evidence that to the signature was attached the express condition that it was intended to convey something more than a mere witnessing to the execution, and was meant as involving consent to the transaction. Attestation need not be in any particular form, a mere signature is sufficient. Registered.
The registration must be valid according to the law for the time bring in force. Thus if the description is not sufficient to identify the property or if there is fraud on the law of registration, or if the property is situate in a different circle or if the deed was not presented by the proper person, or if the description is insufficient to identify the property, the registration is void.
The definition excludes a “Will”. The word instrument is used in the sense as being not only evidence of the transaction but the transaction itself.