Signature of Other Attesting Witnesses under Indian Law: A Jurisprudential Analysis

Signature of Other Attesting Witnesses under Indian Law: A Jurisprudential Analysis

1. Introduction

The concept of attestation permeates several branches of Indian private law, most prominently succession, property transfers and secured transactions. At its doctrinal core lies a deceptively simple requirement: certain instruments must be “attested by two or more witnesses.” The jurisprudential difficulties emerge when courts are asked to decide what constitutes a valid signature of the “other” attesting witness, how such signature must be proved, and whether ancillary signatories (scribes, identifiers, registering officers, registrars) can be elevated to the status of attesting witnesses. This article undertakes a critical examination of those questions through the prism of statutory provisions and leading authorities of the Supreme Court and High Courts of India.

2. Statutory Framework

  • Section 63(c), Indian Succession Act, 1925: requires that a will “shall be attested by two or more witnesses, each of whom has seen the testator sign … or has received from him a personal acknowledgment of his signature … and each of whom has signed the will in the presence of the testator.”[1]
  • Section 3, Transfer of Property Act, 1882: defines “attested” in substantially identical language, emphasising that the witness must sign the instrument animo attestandi (with the intention of attesting).[2]
  • Sections 68 & 71, Indian Evidence Act, 1872: Section 68 bars the use of an attested document as evidence unless “one attesting witness at least” is called; Section 71 offers a safety-valve when the attesting witness turns hostile or is unavailable.[3]

3. Evolution of Judicial Doctrine

3.1 From H. Venkatachala Iyengar to Janki Narayan Bhoir

The judgment in H. Venkatachala Iyengar v. B.N. Thimmajamma (1958) cast a long shadow over testamentary jurisprudence by articulating the “conscience rule”: a probate court must be satisfied that all statutory formalities—including dual attestation—are proved by trustworthy evidence.[4] Building on that foundation, Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) crystallised three propositions: (a) the propounder must prove not only his own signature but also the signatures of “each of the attesting witnesses”; (b) examination of one witness under Section 68 is mandatory but insufficient unless his testimony covers the act of both witnesses; and (c) where the second witness is available yet not examined, Section 71 cannot be invoked to cure the omission.[5]

3.2 Intent to Attest and the Animo Attestandi Doctrine

In M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons (1969) the Supreme Court held that an identifying witness or registering officer, signing in discharge of statutory duty, does not ipso facto become an attesting witness because he lacks the requisite animo attestandi.[6] The decision has been repeatedly cited with approval, notably in Bhagat Ram v. Suresh (2003) which re-affirmed that a Registrar’s signature, without intent to attest, cannot satisfy the dual-attestation mandate.[7]

3.3 High-Court Elaboration

  • Smt. Punni v. Sumer Chand (HP HC 1994) and Gurnam Singh v. Ass Kaur (P&H HC 1976) constrained courts to scrutinise the capacity in which a person signs; a scribe or identifier is prima facie not an attesting witness unless positive evidence shows otherwise.[8]
  • P. Kamakshi Ammal v. P. Venkatesan (Madras HC 1985) recognised that a scribe can become an attestor provided he signs with the deliberate intent of witnessing execution.[9]
  • In mortgage litigation, Smt. Pawan Rekha Devi v. Kesho Yadav (Patna HC 2001) applied Section 68 to conclude that proof by one attesting witness suffices so long as execution by the mortgagor is admitted; proof of signature of the “other” attesting witness is unnecessary when execution is otherwise undisputed.[10]

4. The “Signature of Other Attesting Witness” Problem

4.1 Is Physical Signature Mandatory for Each Witness?

Both Section 63(c) and Section 3 use the phrase “each of whom has signed the instrument.” Consequently, absence of the physical signature—or inability to prove it—vitiates attestation. The Allahabad High Court, echoing Privy Council authority, rejected presumption in favour of attestation where the second witness’s signature was not proved (Lachman Singh v. Surendra Bahadur Singh, 1932).[11]

4.2 Proving the Signature of the Other Witness

  1. Direct Testimony. The safest mode is examination of the second witness himself (Section 68). Where he is unavailable, Section 69 (Evidence Act) permits proof by other means (hand-writing expert, person acquainted with handwriting, admissions).
  2. Indirect Proof through First Witness. Janki Narayan Bhoir teaches that the first witness’s testimony must expressly state that he saw the other witness sign in the presence of the executant; bare proof of his own signature is inadequate.[5]
  3. Admissions & Presumptions. Admissions by a party (Section 70, Evidence Act) may obviate formal proof, but only against the admitting party. Courts are reluctant to rely on Section 114 presumptions where attestation is statutorily mandated.[11]

4.3 Role of Registration

Registration does not dispense with attestation for wills and mortgages. The Registrar’s endorsement cannot be treated as the “signature of the other attesting witness” unless evidence demonstrates animo attestandi (Bhagat Ram, 2003).[7]

4.4 Interaction with Section 71, Evidence Act

Section 71 is a proviso, not an alternative mode of proof. It becomes operative only when the attesting witness “denies or does not recollect” execution, but it cannot be invoked to circumvent the requirement of examining the available second witness (Janki Narayan Bhoir).[5]

5. Comparative Contexts

5.1 Wills

Because testamentary dispositions often surface decades after execution, courts impose a higher standard of vigilance. Suspicious circumstances (beneficiary drafting the will, shaky mental capacity, etc.) intensify the scrutiny, as reaffirmed in H. Venkatachala Iyengar. The propounder must dispel such suspicion by cogent proof of both signatures.[4]

5.2 Mortgages and Charges

Although Section 59, Transfer of Property Act, requires attestation of a mortgage deed, the evidentiary practice is comparatively lenient: proof by one witness may suffice if execution is admitted (Pawan Rekha Devi).[10] By contrast, in security instruments furnishing a “charge” (not a mortgage) the statute does not mandate attestation; therefore, absence of the second signature does not invalidate the charge (M.L. Abdul Jabbar Sahib).[6]

5.3 Customary Adoptions and Other Deeds

While Kartar Singh v. Surjan Singh (1974) principally concerned adoption ceremonies, the Supreme Court’s stress on formal compliance with statutory requirements reinforces the broader judicial attitude: where statutes prescribe ritualistic acts (e.g., dual attestation, “giving and taking”), courts will enforce them strictly.[12]

6. Practical Implications for Drafting and Litigation

  • Contemporaneous Attestation Sheet. Practitioners should include a separate attestation clause reciting that both witnesses saw the executant sign and, in each other’s presence, affixed their signatures.
  • Identification of Capacities. Signatories serving multiple roles (scribe/identifier/attestor) must explicitly state in what capacity they sign to eliminate later ambiguity.
  • Evidence Preservation. Audio-visual recording or notarised statements of witnesses, though not statutorily required, can prove invaluable when witnesses become unavailable.
  • Litigation Strategy. In probate or mortgage suits, early identification and summoning of the surviving attesting witness is essential; reliance on Section 71 should be viewed as contingent, not primary, strategy.

7. Conclusion

Indian courts have consistently treated the “signature of the other attesting witness” as a substantive statutory safeguard rather than a procedural nicety. The jurisprudence—from H. Venkatachala Iyengar through Janki Narayan Bhoir and M.L. Abdul Jabbar Sahib—reveals an unbroken thread: attestation is valid only when each witness signs with the conscious purpose of witnessing execution, and proof of such signing is rigorously demanded. The practical message for draftsmen and litigators is clear: ensure dual attestation in both form and substance, document the circumstances of signing, and be prepared to prove both signatures in court. Anything less exposes the instrument to fatal infirmity.

Footnotes

  1. Indian Succession Act, 1925, s. 63(c).
  2. Transfer of Property Act, 1882, s. 3 (definition of “attested”).
  3. Indian Evidence Act, 1872, ss. 68 & 71.
  4. H. Venkatachala Iyengar v. B.N. Thimmajamma, 1958 SCC 0 141 (SC).
  5. Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91.
  6. M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons, (1969) 1 SCC 573.
  7. Bhagat Ram v. Suresh, (2003) 12 SCC 35.
  8. Smt. Punni v. Sumer Chand, 1994 (HP HC); Gurnam Singh v. Ass Kaur, 1976 (P&H HC).
  9. P. Kamakshi Ammal v. P. Venkatesan, 1985 (Madras HC).
  10. Smt. Pawan Rekha Devi v. Kesho Yadav, 2001 (Patna HC).
  11. Lachman Singh v. Surendra Bahadur Singh, 1932 (AIR All HC).
  12. Kartar Singh (Minor) v. Surjan Singh, (1974) 2 SCC 559.