a study on compulsory attestation of documents

In day to day life we across number documents in connection with lease hold rights ,sale transactions,gifts and mortgages.These docuemtns are governed by the provisions of TRANSFER OF PROPERTY ACT ' in india.

As per the provisons of TRANSFER OF PROOPERTY ACT  under section 3 of the act certain documents are specified to be compulsorily attestable by two or more wittnesses.These documets are

1.Gift deed (REGISTRATION COMPULSORY)

2.Any mortgage deed.(REGISTRATION COMPULSORY except in caseof mortgage by deposit of title deeds)

3.WILL bequeathing properties to interested persons.(REGISTRATION OPTIONAL)

curiosuly

SALE DEED (REGISTRATION COMPULSORY)  and 

DEMAND PROMISSORY NOTE(NEGOTIABLE NSTRUMENT) are not compulsorily attestable documents..

Essentially two or more wittnesses have to see the executant  sign theinstrument  in their presence  or has recieved from  the executant  a personal acknowledgemtn  of his signature  and each of them  has signed the instrument  inthe presenceof the exutant.

according to section 68 of Indian evidence act  atleeast one attesting wittness has to be examined to prove the executionof the document.

Usually the scribe of the document  is knopwn to the parties to the docuemnts and where as the wittnesses are secured at the Registrar's office who are passers by for attesting the docuyemtn and for identificationof parties before the Registering authority.

But the Scibe of the document cannot be called as attestor of the document and he can not alone be exanubed to prove the execution of the document.

according to section 90 of Indian Evidence Act 1872, Presumption as to documents thirty years old - Where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the perticular case consideres proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any  particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

HOWEVER THE SUPREME COURT OF INDIA  IN AIR 2004 SC 436 DEALT WITHT THE SUBJECT IN POSITIVE MANNER THAT THE REGISTERING AUTHORITY (REGISTRAR) IF  CAN BE A STATUTORY ATTESTING WITTNESS.

TNVRMURTHY ADVOCATE.534350.AP.