Transfer of property

Topic 2.Attestation and Notice

We are here…

1. Movable and immovable property2. Attestation and notice3. Actionable claim4. Transfer of property5. Restraints on transfer6. Rule against perpetuities7. Vested and contingent interest8. Doctrine of election9. Sale of immovable property

Notice

Relevance

• Properties are transferred by way of execution of documents. We know that, as per Contract Act, free will is necessary for a Contract to be valid.

• How does one ascertain that a person executed a document on his free will?

• This is where attestation comes into picture.• TP Act requires attestation, but not for all

documents. • Mortgages and gifts need to be attested• Documents effecting sales, exchanges and

leases need not be attested

Attest means

• Executant – a person who has a certain right over a property and makes a document… to make changes to his right over that property.

• Execute – the act of an executant writing and signing on an instrument.

• ATTEST – As per TP Act, - that a person has signed the document by way of testimony of the fact that he saw it executed.

• The party who sees the document executed is a ‘witness’

For example• Shashi is the owner of a land in Thiruvanantapuram. • He wishes to mortgage the land in favour of Antony.• Shashi wants Sunanda to be a witness to this event.• While Shashi executes the mortgage deed in favour of

Antony… Sunanda being a witness to the event ‘attests’ over the mortgage deed.

• Shashi is the executant• Sunanda is the witness• Sundannda has attested the document. The attestation

is a testimony that Shashi executed the document in her presence and out of his free will. This prevents coercion.

Sec. 3 of TP Act defines attestation

• 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, or has received from the executant a personal acknowledgement 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; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary

Confusing?

• The language of Sec. 3 of TP Act is very confusing.

• So, what we do is…

• Split up the various elements in the provision and study them as “requisites of a valid attestation”.

Requisites of a valid attestation

1. There must always be two or more witnesses2. It is ordinarily necessary that each witness must see –

a) The executant sign / affix his mark (thumb impression) to the instrument

b) Or some other person sign the instrument in the presence, and by the direction, of the executant

c) Or the witness should have received from the executant a personal acknowledgement of his (executant’s) signature / mark or of a person signing on the behalf of the executant.

3. Thus, an attesting witness need not witness the actual execution of the deed, in as much as he can attest on the acknowledgement of execution by the executant himself.

Requisites of a valid attestation

4. But, each witness must sign the instrument in the presence of the executant

5. Further, each witness must sign only after the execution is complete, otherwise it will not be a valid attestation. [Sant Lal v. Kamla Prasad (1952) SCR 116]

6. All the attesting witnesses need not attest at same time.7. No particular form of attestation is necessary. Thus, the

signature of an attesting witness need not appear in any particular place. Thus, even if the witness signs the document against the signature of the executant, where he has executed the document, it is sufficient and adequate attestation of the document [Kaderbhai Ismailji v. Fatimabai]

Cases

• Bhagwat v Gorakh• Kundan Lal v. Rofi Begam• Abdul Jabbar v. Venkata Sastri• Girja Dutt v. Gangotri Singh

• Leading CaseKumar Harish Chandra Singh Deo v. Bansidhar

Mohanty: No provision of law debars money lender from attesting a deed which evidences the transaction where under the money was lent

Effect of invalid attestation

• Effect of invalid attestation – makes the deed of transfer of property invalid.

• No property passes under it.• Thus the document cannot be enforced in a court of law• If the document is for mortgage, it can neither operate as

mortgage, nor as charge. But still it is admissible as evidence of a personal covernant to repay debt [ Krishna Kumar v. Kayashta Pathshala ]

• Leading Case: Padarth Halwai v. Ram Narain: Transfer of property by Pardanashin woman, when the attesting witness could not see her but could hear her voice; the attestation was held valid.

Notice

Notice

• Notice means knowledge of a fact.• In law, knowledge of a fact, affects one’s legal rights and

liabilities.• Sec. 3 of TP Act enumerates 3 kinds of notices• A person is said to have “notice” of a fact –

– When he actually knows that fact (actual / express notice)– When, but for wilful abstentation from an enquiry or search

which he ought to have made, or gross negligence, he would have known it (constructive or implied notice)

• Thus we have two types of notice:– Actual notice– Constructive notice

• Next, we discuss both in detail

Actual notice

• A person is said to have actual notice of a fact, when he actually knows it

(what a definition, deserves an award!)

• Notice must be definite to constitute an actual notice

• Vague reports / rumours do not amount to notice

Actual notice

• Example: a legal notice given in a newspaper that a certain property is under litigation, hence should not be dealt with. This is a definite notice. If one has read this, it is deemed that the person reading this has an actual notice

• Example: a gossip being done in a tea shop where some people discuss that a certain property’s title is defective. This news is not definite and not given by any reliable source. Hence, it is not a notice at all.

Constructive notice

• Where a person ought to have known it.

• A person has constructive notice of all facts of which he would have acquired actual notice of all facts of which he would have acquired actual notice had he made those enquiries which he ought reasonably to have made.

Legal presumption of constructive notice arises in these circumstances

• 1. Wilful abstention from an enquiry or search

• 2. Gross negligence

• 3. Registration

• 4. Actual possession

• 5. Notice to agent

Cases

• Ahmedabad Municipal Corporation v. Haji Abdul Gafoor

• Md. Mustafa v. Haji Md. Isa

• HN Narayanaswamy Naidu v. Deveeramma

• Ram Niwas v. Bano

• ML Abdul Jabbar Sahib v. H Venkata Sastri

The contents of this file have been compiled from various reliable sources. Due care has been taken to avoid

errors. The author of this work takes no responsibility for the consequences arising out of error. The reader is

advised to cross check with the text books and the Act in case of confusion. You are allowed to share this file with your friends without making changes to the contents of

this file. However, you are not allowed to exploit this work commercially.

- Gagan K.University of Mysore

gagan555@gmail.com