Home / Money / Calculators /  Attestation protects an executant from undue pressure

My grandmother voluntarily gifted an immovable property to my mother. As witnesses, a friend of my parents and I have given our statements. My uncle is trying to file a suit. Do I, an adult family member, as a witness pose a problem if a suit is filed against us?

—Apoorva Sharma

We are assuming that the transfer of immovable property by way of gift must have been effected by a duly stamped and registered instrument signed by your maternal grandmother and attested by you and your parent’s friend as witnesses in accordance with section 123 of Transfer of Property Act, 1882 (TOPA).

The word ‘attested’ has been defined in section 3 of TOPA as:

“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 acknowledgment 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 object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. It implies the presence of a person who stands by merely as a witness, but is not a party to the transaction concerned. Neither the definition of the term ‘attested’ nor section 123 of TOPA debars a party to a gift deed from attesting it. It must, however, be borne in mind that the law (sections 68-70 of the Indian Evidence Act, 1872) requires that the testimony of parties to a document cannot dispense with the necessity of examining at least one attesting witness to prove the execution of the deed. Therefore, by inference, it debars a party from attesting a document which is required by law to be attested.

Where, however, a person is not a party to the deed, there is no prohibition in law barring him to become a witness to the execution of such document. But a distinction is drawn between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the transaction, and it is the latter who is not incompetent to attest the deed. Merely because a person is interested in a transaction, he is not, on that ground, disentitled to be a valid attesting witness.

You being an attested witness in the gift deed made by your maternal grandmother in favour of your mother cannot become a ground to challenge the gift deed since you are not a party to the transaction. Even if one were to contend that you might be interested in the transaction, even then your being an attested witness in the gift deed cannot be challenged.

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