Addition of witness or change of witness status (gift deed)
akhil
(Querist) 22 February 2015
This query is : Resolved
Sir,
My parents and my uncle have registered their land in my name as Gift Deed . This was signed by the scribe & 1 Witness . The scribe signed as a witness as well, But it is not mentioned in the document that the scribe has signed with both the capacity of a scribe & witness.
Is there any way to correct the same or add an additional witness ? I dont want this to become a complication in future. What should I be doing ?
Pls help
Dr J C Vashista
(Expert) 22 February 2015
Is it registered or unregistered?
If registered it is perfect, otherwise let it be corrected before presentation for registration with the Sub-Registrar, it is compulsory.
akhil
(Querist) 22 February 2015
Dear Sir,
Yes,the Gift deed has been registered 6 months before. But during registration witness column have been signed by only 1 individual witness and the scribe. But the scribe hasnt mentioned anywhere in the document that he is signing in dual capacity.
Recently one of my friend , a lwayer have challenged a similar deed in the court and he intimated me that my document will also stand vulnerable if someone challenges it, but neither he or the local sub-registrar knows what is to be done for correcting it, He has checked in his circle as well for a solution, but unable to find the way out . Could you pls help.
He challenged a deed with below clause :
1.) animo attestandi - "with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant, it is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person put his signature on the document for some other purpos for example to certify that he is a scribe or an identifier or registering officer, he is not an attesting witness"."
2) "Scribe (deed writer / advocate) cannot be called witness"
Could you pls help.
akhil
(Querist) 22 February 2015
Also, I heard from him that If the scribe appears before a court and accepts that he has signed in dual capacity then the problem should be solved. But he is not sure about the authenticity of the same .
Could you pls let me know if this is authentic ? also if yes , then what is the procedure to produce the scribe before the court for the same. The scribe will be ready for acknowledge the same in front of the court.
alexander
(Expert) 22 February 2015
1. Yes; the scribe although he is involved in drafting/writing the will at every stage of the DEED, he is in this capacity not an attesting witness to meet the requirements of Sec 68 of the Indian Evidence Act 1872.
2. For being an attesting witness, the Court might evaluate 'Factum Probantia' and the animus/animo atestandi of the witness. Like a Public Notary notarising a document cannot considered as an attesting witness for the document - the Scrbe per se is not an attesting witness
3. The scribe can be a competent witness if he makes it very explicit that he is signing the Document in the capacity of an attesting Witness eg Attesting witness NO 2
4 As you have accepted the gift, get its mutation done in your name then the fat would be in fire - i.e you would know where the matter stands and you could take remedial action
5. As a normal procedure if the Gift deed is challenged the attesting witnesses would be required to testify that the donor and the donee signed in the presence of the attesting witnesses. Getting only one witness and leaving out the Scribe witness , I do'nt think , shall meet the requirement as imposed by Sec 68 IEA 1872 unless the locus of the Scribe has been accepted as a competent attesting witness.
akhil
(Querist) 22 February 2015
Dear Sir,
So if I understand correctly,
The option available is to execute mutuation of the document and take remedial steps if required during that time.
Please correct me if I am wrong, mutuation would be just a right to pay tax and not a legal right over the land.
Do I have any other way to get this done as well ? Like representing the scribe in front of the court and acceptance ? If yes please do let me know the procedure on how to bring this to the court.
Please help me if there is a way out for this .
Rajendra K Goyal
(Expert) 22 February 2015
Mutation would show your title on the property in record.
The gift deed is registered in your favor, there is no need to worry if witnessed by only one witness.
alexander
(Expert) 22 February 2015
Mr Akhil.
I have just followed the basic information given by you. The scribe has acted in dual capacity- you say .
If you can establish that he was acting as an attesting witness then perhaps you have no problem.
You should consult your local advocate with details of the case
ALEXANDER
nom de plume
prabhakar singh
(Expert) 22 February 2015
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=so says section 123 of Transfer of Property Act.
Hence we do not need to go else where to know what law about gift is.
Much depends on draft of the deed, more particularly about attestation.
If deed is silent about attestation and two witnesses have been mentioned by the registrar then certainly it can be deposed
that the donor (and donee) signed before the
the attesting witnesses and attesting witnesses signed the deed in presence of donor and donee.
And this fact can be proved by deposition of the any of the parties and by corroboration of any of those two witnesses available or by some one else who was present if both attesting witnesses are not available.
So get your deed examined in context of my this observation.
Dr J C Vashista
(Expert) 23 February 2015
I fully agree with the experts opinion especially Mr. Rajendra K Goyal, Mr. Alexander and Mr. Prabhakar Singh ji who have made the concept of attestation vis-a-vis registration qua gift deed explicitly clear.
Once the gift deed is registered there is no legal requirement to summon any of the attesting witness(es) for deposition to prove that the donor has signed in my/our presence, the basic required ingredient in evidence.
The deposition by Sub-Registrar (or his official) with the record of the subject document is enough. There is nothing illegal, invalid or wrong.
akhil
(Querist) 23 February 2015
Thank you very much Dr. Vashishta, Mr. Rajendra K Goyal, Mr. Alexander and Mr. Prabhakar Singh ji .
I have made a a major mistake in the above writing, I apologies for my inexpereince.
The Land is not registered in my name , The Will is registered in my favour as gift deed. And as per the writing in the document, The land will legally come to me after their life time.
And that is the reason I wanted to correct it now itself.
Could you pls advice me . Really sorry for the confusion.
akhil
(Querist) 23 February 2015
I consulted with few lawyers in my friend's circle(he is also a lawyer) & the local Sub-Registrar on how to correct it , But no one is sure on what to do in this issue.
They gave me 2 options:
1. Cancel the deed and go for a fresh one , here I have 2 issues (1. Registration fees , 2. High chances of some people influencing my uncle to give some land to them )
2. The other idea given by one of the lawyers was "scribe should appear before a court and accept that he has signed in dual capacity" but he too is not sure about the procedure on how to bring this to court. I spoke with the scribe and he is ready for the same.
prabhakar singh
(Expert) 23 February 2015
IN REPLY TO YOUR BELOW POST:
"I have made a a major mistake in the above writing, I apologies for my inexpereince.
The Land is not registered in my name , The Will is registered in my favour as gift deed. And as per the writing in the document, The land will legally come to me after their life time.
And that is the reason I wanted to correct it now itself.
Could you pls advice me . Really sorry for the confusion."
ANSWER:THEN IT IS NOT A GIFT BECAUSE BY DEED OF GIFT PROPERTY PASSES ON TO DONEE
AT ONCE ,THEN AND THERE.
AND WHEN A DEED IS WILL,PROPERTY PASSES ON TO BENEFICIARY OF THE WILL AFTER THE DEATH
OF TESTATOR.
LAW WITH REGARD TO WILL IS FOUND IN INDIAN SUCCESSION ACT, 1925,PART VI
TESTAMENTARY SUCCESSION, CHAPTER II
Of Wills and Codicils . A will can be revoked or altered any number of times by it's maker(s.62).
A will is required to be executed by the testator(maker of the will) following the
law laid down in section 63 of the said Act,as per which :
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed thatit shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses,each of whom has seen the testator sign or affix hismark 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 acknowledgment of his signature or mark, or of 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 thanone witness be present at the same time, and no particular form of attestation shall be necessary.
NO STAMP DUTY IS PAYABLE ON WILL BUT REGISTRATION FEE IS CHARGEABLE EACH TIME.
THE BEST COURSE IS TO GO FAR AN OTHER FRESH DRAFT REVOKING THE EARLIER STATING THE REASON OF TECHNICAL MISTAKE OF ATTESTATION WITH HELP OF A COMPETENT CIVIL LAWYER,AND TO GET THE SAME REGISTERED A FRESH.
IF ANY STAMP DUTY WAS CHARGED ON EARLIER DEED THEN IT WAS A WRONG,REFUND THEREOF IS POSSIBLE.
T. Kalaiselvan, Advocate
(Expert) 23 February 2015
@Author : why do you make such a big hue and cry over good for nothing issue?, firstly you have mislead all the experts and extracted the information based on your academic query to update your knowledge, now in the name of mistake you raise another academic query, however you should be happy that the experts have addressed all your queries very properly and have given very good opinions. If it is a Will, just ignore it and prepare a fresh will and get it registered or leave it unregistered, this will supersede the previous one invalidating the existing Will.
akhil
(Querist) 24 February 2015
Thank you very much Prabhakar Singh ji, Dr. Vashishta, Mr. Rajendra K Goyal and Mr. Alexander. I am sorry for the confusion caused as well. I have shown this thread to my lawyer and I am going for a fresh Will.
@Mr.Kalaiselvan: Dear sir, I have no academic interest and I am neither from this background and nor am I extracting anything by misleading the experts who have really helped me by sparing their time for my query, I am sorry if my posts gave any such appearance. I was trying to solve my issue and I am having a better clarity now .
Thanks much for the expert panel , this is an awesome forum and I believe many would have got benefitted by this initiative .
