Definition
The act of witnessing the execution of a document and signing it to confirm that it was duly executed.
Attestation requires the attesting witness to be present at the execution of the document and to sign as a witness — for wills, two attesting witnesses are mandatory.
Statutory Definition
Transfer of Property Act, 1882, Section 3 (definition of attested); Indian Succession Act, 1925, Section 63 (attestation of wills); BSA Section 59 (proof of attestation).
Etymology & Origin
From Latin 'attestatio' (testimony, witness — from 'attestari', to attest, bear witness — 'ad', to, and 'testis', witness). 'Attestation' is the act of bearing witness 'to' a document — the attesting witness 'stands witness' to the execution. The same root gives 'testify,' 'testament,' 'testator,' and 'testimony' — all from 'testis' (witness).
Full Legal Analysis
Attestation is the act by which a person (the attesting witness) signs a document to testify that they were present when it was executed by the executant, and that they have verified that the executant signed it. Attestation is different from mere signature — the attesting witness must: (1) be present at the execution; (2) see the executant sign; and (3) sign as a witness after seeing the execution. Section 3 of the Transfer of Property Act, 1882 defines 'attested' in relation to an instrument: attested 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.
Attestation requirements for different documents: (1) Wills — under Section 63(c) of the Indian Succession Act, 1925, a will must be attested by two or more witnesses, each of whom has seen the testator sign and has signed the will in the presence of the testator; (2) Gifts of immovable property — require registration and must be attested (TP Act Section 123); (3) Mortgages — above a specified value must be attested (TP Act Section 59); and (4) Settlements and family arrangements — generally require attestation if of immovable property.
The Privy Council laid down the foundational rule for attestation: an attesting witness must have been present and seen the executant sign (or make their mark, or acknowledge a prior signature) and must have signed as a witness in the executant's presence. Constructive presence — being nearby but not actually watching the executant sign — is insufficient. The attesting witness must have been in a position to see the execution, even if they did not actually look. The case is the leading authority on what constitutes valid attestation and has been consistently followed by Indian courts. In particular, the judgment established that it is not necessary for all attesting witnesses to be present at the same time — attestation can be sequential.
Proof of attested documents: under BSA Section 59 (formerly IEA Section 68), if a document is required by law to be attested, it cannot be used as evidence until at least one attesting witness has been examined, who has confirmed the attestation. If both attesting witnesses are dead or cannot be found, the signature of the attesting witness may be proved by other evidence. For wills, the attesting witness must depose not only that they signed as a witness but also that they saw the testator sign and that the testator was in a sound and disposing state of mind at the time.
For advocates, attestation issues arise in: (1) will contests — whether the will was properly attested by two witnesses in the testator's presence; (2) gift deeds and sale deeds — whether attestation requirements under the TP Act were satisfied; (3) fraud in attestation — whether the attesting witness actually saw the execution or was fraudulently induced to sign; and (4) proof of attested documents in court — the compulsory examination of an attesting witness.
This Term in Indian Statutes
Transfer of Property Act, 1882, 1882
"'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... and each of whom has signed the instrument in the presence of the executant."
Shamu Patter PC: attesting witness must see execution — constructive presence insufficient; sequential attestation permissible; will needs two witnesses under ISA Section 63; BSA Section 59: attesting witness must be examined to prove attested document; gift mortgage mortgage deed attestation TPA
