By Y.SRINIVASA RAO, Principal Senior Civil Judge, Tirupati.
TABLE OF CONTENTS:
- Mortgage deed
Introduction:— In this article, a crucial note as to the point what are the documents required by law are to be attested. Whether a document requires by the law to be attested or not is an important point for consideration when the document is tendered in evidence and that it is a potent factor for consideration under the civil law. In certain cases, attestation it is legally made as mandatory. In fact, Section 67 of the Indian Evidence Act,1872 says about the proof of documents which are not required by law to be attested. However, it is in section 68 of the Indian Evidence Act, where it is said about the proof of execution of documents required by Jaw to be attested.
Attestation :— The word attestation is to be understood in the context of Section 63(c) of the Indian Succession Act. It must be remembered that after the ruling of Shamu Pattar v. Abdul Qadir – 35 Mad 607 (Privy Council) , the Transfer of Property (Amendment) Act 27 of 1926 inserted the definition of “attested” in Sec. 3 of the Transfer of Property Act in terms of the definition of the Indian Succession Act. See also. M. Rangasamy vs. Rangammad, 2004-1-LW-72 (SC).
Mortgage Deed:— In case of a transaction of mortgage, sometimes mortgage deed is to be registered and properly attested. Section 59 of the Transfer of Property Act lays down that a mortgage to be effective in law should be effected in the manner provided under that section, that is only by a registered instrument signed by the mortgagor and attested by at least two witnesses in case the principal amount secured is Rs. 100/-, or upwards. Now it may be taken to be settled law that if a transaction of a mortgage is not effected in the manner provided by law, there is no transfer of an interest by the mortgagor in favour of the mortgagee in the eye of law. See. Lachhmi Narain And Anr. vs Kalyan And Anr. AIR 1960 Raj 1.
Will :— Will which is made by any Hindu, Buddhist, Sikh or Jaina on or after 01-01-1927, it must be attested under Section 63 of the Indian Succession Act 1925. Section 63 (c) of the Act says that the Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
It is curious to see that section 63 of the Indian Succession Act 1925 is not applicable to Muslims.
Gift:— Section 123 of the Transfer of Property Act provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. See. Gift Tax Officer vs Dr. V. Srinivasan, 2002 81 ITD 182 Mad and Brij Raj Singh (Dead) By L. Rs. & Ors vs Sewak Ram & Anr . Section 123 of T.P.Act does not apply to gifts transactions done by Muslims.
Conclusion:— As was pointed out in Ramaswamy Iyengar v. Kuppuswamy Iyer – (1921) 14 L.W. 99 , a deed which creates a charge does not require to be attested and proved in the same way as a mortgage. Even sale deed requires no attestation. The rule is under Section 54 of the Transfer of Property Act, a sale deed relating to tangible immovable property of value of Ra.100/- and upwards or of a reversion or of other intangible thing can be done only by a registered deed and it does not require attestation. Further, as seen from the language of section 68 of the Indian Evidence Act,1872, a bond is also not an instrument required by law to be attested but for the purpose of Stamp Act it may be necessary for a bond to be attested. An agreement for sale is an instrument which does not require to be attested by any law and it can be understood as seen from the Explanation to Sec. 17(2) of the Registration Act added by the Amendment Act of 1927 which says that the instrument purporting to or operate to effect a contract for sale of immovable property shall not be-deemed to be required to be attested.