Party to document is debarred from attesting a document which is required by law to be attested.
It has been laid down that it would defy common sense, if a party to a deed could also attest the same. Thus, a party to an instrument cannot be a valid attesting witness to the said instrument, for the reason, that such party cannot attest its own signature. (Vide: Kumar Harish Chandra Singh Deo & Anr. v. Bansidhar Mohanty & Ors., AIR 1965 SC 1738).
The first respondent lent money to the appellant and obtained a mortgage deed from him in the name of the second respondent. The first respondent was himself one of the two attesting witnesses. On the failure of the appellant to repay the amount, the first respondent instituted a suit and the suit was decrees by the High Court. In his appeal to the Supreme Court, the appellant contended that : (i) the mortgage deed was not validly attested and (ii) the first respondent was not entitled to sue. HELD : (i) A person who has lent money, for securing the payment of which a mortgage deed was executed by the mortgagor, but who was not a party to the deed, could be an attestor. [156C, G-H]
There is a distinction 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 the latter is not incompetent to attest the deed. 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. Though, neither the definition of "attested" in s. 3 nor s. 59 of the Transfer of Property Act debars a party to a mortgage deed from attesting it, since the testimony of parties to a document cannot dispense with the necessity of examining at least one attesting witness to prove the execu- tion of the deed, it must be inferred that a party is debarred 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 to the proof, of the execution of the document, by that person.
Supreme Court of India
Kumar Harish Chandra Singh Das & ... vs Bansidhar Mohanty And Ors on 5 May, 1965
https://www.lawweb.in/2013/06/party-to-document-is-debarred-from.html
