Not just a formality: The Attestor attesting witness must sign the deed or document concerned in the presence of the Executant.One of the factors which is not considered to be important in the course of execution and registration of deeds is attestation of deeds. In respect of deeds which are being registered, many parties regard this as a formality. The general approach is that any person who can sign the deed as a witness is good enough to attest the deed. However, this is an important matter and is not to be treated casually. It is desirable to have an understanding of the issues concerned.
An Attestor is a person who has seen the deed concerned being executed. As such, a party who is executing the deed or document, cannot be an Attestor. A Power of Attorney holder executing the deed or document is also deemed to be a party and therefore, cannot be an Attestor in his individual capacity. In order that the attestation is proper, the Attestor attesting witness must sign the deed or document concerned in the presence of the Executant. A person who has made the deed or document, namely, the Scribe, can be a valid witness who can attest the deed or document.
To give a clear picture, if a deed or document is to be attested usually by two or more witnesses, it must be very clear from the wordings or the attendant circumstances that the Attestors have signed the deed or document as witnesses. The witness should have put his signature for the purpose of attesting the deed or document in having seen the Executant sign the deed or must have received an acknowledgement for this purpose. Its execution should happen in the presence of the attesting witness. The purpose is to testify the signature of the Executant. As such, the Attestor must personally know the Executant whose signature he or she attests.
An attestation is different from an acknowledgement. Attestation is done by a witness. An acknowledgement is done by the party concerned. You will also come across the word “Subscribe” in legal documents. Strictly speaking, the word “Subscribe” does not impute personal knowledge of the matter in consideration and is more in the nature of appending the names of signatures in a mechanical manner.
The term attested, when used in relation to a deed or document, means that the deed or document concerned isattested by two or more witnesses. Each of the witnesses should have seen the Executant sign the document. Each of them should have signed as a witness in the presence of the Executant. However, it is not necessary that the witnesses should sign in the presence of each other. No specific or particular form is prescribed for attestation.
At times, a person may sign his or her name in a deed or document for identifying an Executant. The purpose of this is only to confirm the identity and such an identifier does not become an Attestor for the execution of deed or document concerned.
The term “Sign” would generally mean affixing the signature or otherwise affixing the name or a mark to represent the name of a person. The “signing” should be such that it would bind the person concerned as relating to the aspect of signing. Even the insertion of a name, done in the manner required, may amount to signing, authentication or attestation as the case may be.
One of the common errors in perception is that, when a person signs as a witness in a deed or document, he or she is taken to have consented to the transaction covered by the deed or document concerned. This is a wrong perception. Merely because the deed or document is attested or witnessed by a person, it does not mean that the person is aware of the contents of the said document.
The position of the Attestor is very important. If execution of a deed or document is denied or is
doubtful, or is to be proved otherwise, the evidence of the Attestor, in a Court of law or other Authoritywould be vital. If a deed or document under which a property is conveyed to you or under which you may obtain substantial benefits is called in question, and you do not know who the Attestor or witness is, imagine the circumstances that may arise. Documents for which valid attestation by two or more witnesses, is mandatory include Will and Testamentary dispositions, mortgages and Gifts of immovable property. While choosing witnesses for Wills particularly, make sure that in normal circumstances the witnesses would outlive the Testator or Testatrix or the person who makes the Will. Also such a person should be willing to prove the execution of the Will by signing necessary affidavits and if so appear in the Court and give evidence, when the Will takes effect and orders from the court are necessitated.
Where attestation is mandatory and the execution has been denied, in order to prove that a document has been duly executed, at least one of the witnesses should be called to prove that the document has been duly executed. Such a person should provide satisfactory evidence to the effect that he or she had duly attested the deed or document concerned. He or she should also prove that the deed or document has been duly executed by the Executant.
An illiterate can be a witness to the execution of a deed or document, provided the other requirements for a valid attestation are satisfied.
Where the document contains several pages and the Executant has signed each page, it is sufficient if the Attestor has generally seen the execution and at least one signature is attested. In respect of documents for which attestation is mandatory, if the attestation is invalid or is not made, then the transaction or bequest as the case may be intended under the deed or document would not operate. At times, an officer, registering a deed, makes an endorsement to the effect that the Executant is personally known to the Registering Officer concerned. This does not amount to attestation.
It is to be noted that the purposes for which a person signs the document as a witness may differ. If related to execution, the signature of the witness is to secure the attestation. If relating to presentation of the document for registration, it may be limited to identifying the Executant. Hence, attestation and identification can be made by different persons.
When you are called to witness the execution of a deed or document or when you are calling a person to be a witness for the execution of a document, think of nature and purpose. In law, nothing can be labelled as a trivial or an insignificant matter. Often, it is these very factors which may loom large. An organised approach can save lot of unnecessary hassles.
The author is partner, RANK Associates, Advocates, Chennai.