Attesting witness: Whether bound by contents of the document?

Introduction

The parties entering into a contract usually reduce the agreed terms into writing for the record and affix their signatures to the document as evidence of its due execution. Often such documents, apart from signatures of the parties contain signatures of persons described as witnesses/attesting witnesses. Execution of a written document and attestation of execution by witnesses could in some cases well be a requirement stipulated under the law.

This article examines if such witnesses /attesting witnesses are bound by the contents/recital of the document.

What is “to attest”?

To “attest”, in relation to an instrument signifies the process of attesting by the witness who sees the executant sign or affix his mark to the instrument or has received from the executant a personal acknowledgment of his signature or mark and who signs the instrument in the presence of the executant[1].

Effect of attesting

Privy Council[2] in one of the earlier decisions took a view that mere attestation by a party does not necessarily import his concurrence to the contents of the document/transaction effected thereby. In another case[3] it held that attestation by itself did not prove anything apart from the fact that the signature of an executing party was attached to a document in the presence of a witness. Attestation thus could not impute the witness any knowledge of the contents of the deed nor affect him with notice of its provisions. However, the attestation could be used for the purpose of cross-examination, in order to extract from the witness evidence to show that he was, in fact, aware of the character of the transaction effected by the document to which his attestation was affixed. The Supreme court[4] has also accepted the position that there is no presumption that an attesting witness of a document must be assumed to be aware of its contents.

Estoppel

Section 115 of the Indian Evidence Act, Act I of 1872 incorporates the principle of estoppel and states that when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed to deny the truth of that thing.

The Privy Council in a case[5] considered whether a person is estopped from questioning the right, title and interest of executants in the property transferred under the conveyance deed, on account of the fact that he attested that deed. The Council reiterated that attestation of a deed by itself estops a man from denying only that he witnessed the execution of the deed. It conveys, neither directly nor by implication, any knowledge of the contents of the document, and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects. Attesting witness is not estopped by his mere signature unless it can be established by independent evidence that it was meant as involving consent to the transaction.

The Madras High Court[6] following the law laid down by Privy Council, clarified that an attesting witness could be bound if it was proved that he was aware of the contents of the document and with that knowledge, he attested the document.

Attestation by a person having interest

However, attestation by a person, who has an interest in the subject matter of document attested stands on a distinct footing. Attestation by such a person raises the prima facie presumption that he knows the contents and acquiesces in the disposition of the property by the deed he attests. When the presumption is raised that the attesting witness had knowledge regarding contents of documents, then the burden of proof is shifted to him to show that he could not have got knowledge regarding the contents of the document[7].

The Privy Council[8] as regards Indian documents, took note of a practice to signs as a witness to acknowledge the instrument to be correct. Madras High Court[9]  too took notice of ordinary course of conduct of Indians in the Presidency to hold that attestation by a person who has or claims any interest in the property covered by the document must be treated prima facie as a representation by him, that the title and other facts relating to title, recited in the document, are true and will not be disputed by him as against the obligee under the document. If the attestor of a document has an existing interest in the property dealt with in the document, his attestation is deemed to have been taken in order to bind him as to the correctness of the recitals therein[10]. If in a given case the attestation by a person interested in the property which is dealt with under the challenged document attests it under circumstances and events which would impute knowledge of the recitals therein, then the said attestor having approbated the document and the transaction by such an active participation and involvement, cannot reprobate later to suit his convenience[11]. Where a person having a tangible interest in the property affected by a deed attested the deed, his attestation will tantamount to proof of consent[12].

In case of a reversioner attesting a conveyance by a Hindu widow, the reversioner was held to be estopped from impeaching the sale afterwards, thus treating the attestation as tantamount to assent[13]. Act of becoming an attesting witness to the conveyance was construed as the acquiescence on his part in the act of the widow.

In another instance[14] where a brother put his name as a witness to his brother's signature to a deed conveying the whole of the property, it was inferred that he knew that his brother was selling the whole of the property and it was treated as evidence against him either that the whole property did belong to his brother or that he was acquiescing in his brother's act of selling the whole.

In another decision[15], while accepting the legal position that there can be no presumption that attesting witness had knowledge of the contents of the document, it was held  that when the attesting witness was the father of parties executing the document, he not being a stranger could not plead ignorance of the terms of the document.

In a relatively recent decision[16] the Madras High Court considered if in the circumstances of the said case attestation could amount to admission and consent. The court reiterated the settled position that mere attestation does not operate as an estoppel. The court also acknowledged that there may, however, be circumstances which show that the attesting witness had knowledge of the contents of the documents attested and consented to the same. In the said case, considering the close-knit relationship between the executants and the witness and as the witness was interested in the property, it was held that the witness ought to have remained interested in finding out the contents of the document. Accordingly, the witness was held to be estopped from disputing the title of the executant.

Summing up

The emerging position from the discussion as aforesaid is that ordinarily a witness attesting a document is only bound by the factum of execution of the document by the executant. Normally, unless the contrary is proved, the witness will not be imputed knowledge as to the contents of the document or treated as having consented to the transaction. In cases where the attesting witness has an interest in the subject matter of transaction and stands in a close relation to the executants, he may be presumed to have knowledge of the contents. In such cases unless the witness is able to rebut the presumption, he will be estopped from denying the transaction.