The Interpretation Clause: Attestation, Notice and the Words the Act Runs On

Three, each witness must have signed the instrument in the presence of the executant. This runs the other way from limb two. The executant need not see the witness's experience, but the executant must see the witness sign.

Four, they need not be present at the same time. The definition says so in terms. Witness A can attest in the morning and witness B in the evening.

Five, no particular form of attestation is necessary. The word "witness" need not appear anywhere.

The requirement the examiner tests is animus attestandi, the intention to attest. The phrase means the mind of attesting: a person signs as a witness to the execution, and not for some other reason. So a Sub-Registrar who signs the endorsement, an identifying witness who signs to say he knows the parties, or a scribe who signs to say he wrote the document, is not an attesting witness, because none of them signed in order to witness the execution. This is why a document can carry four signatures and still not be attested.

"Registered"

The Act provides that "registered" means registered in any part of the territories to which the Act extends, under the law for the time being in force regulating the registration of documents. That law is the Registration Act 1908, which is Module IV of this syllabus and is taught from [What the Registration Act Does, and the Registration Establishment] onwards.

"Actionable claim"

The Act provides that an actionable claim means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.

Read slowly, it covers two things: an unsecured debt, and a beneficial interest in movable property that the claimant does not have in his possession. A secured debt is excluded by name. The transfer of actionable claims is dealt with in [Actionable Claims].

"Notice", and its three forms

The Act provides that a person is said to have notice of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

That single sentence contains the first two forms.

Actual or express notice is the first limb: he actually knows.

Constructive notice is the second limb: he does not actually know, but the law treats him as knowing because he ought to have known. Constructive notice arises in two ways under the section itself:

• Wilful abstention from an enquiry or search which he ought to have made. This is deliberate not-looking. A buyer who is told the seller's title deeds are with a bank and pointedly does not ask why is wilfully abstaining.
• Gross negligence. Not mere carelessness, but a degree of carelessness so serious that the law will not let the person profit from it.

Imputed notice is the third form and comes from Explanation III: notice acquired by an agent is treated as the principal's notice.

The three Explanations

Explanation I: registration is notice. Where a transaction relating to immovable property is required by law to be, and has been, effected by a registered instrument, any person acquiring the property, or any part, share or interest in it, is deemed to have notice of that instrument from the date of registration.

The Explanation carries provisos, and they matter. The instrument must have been registered and the registration completed in the manner prescribed by the Registration Act 1908 and the rules under it, and the instrument or memorandum must have been duly entered or filed in the books kept under section 51 of that Act. So a registration that was not properly completed does not give notice to the world.

Note the two conditions in the opening words: the transaction must be one that the law requires to be registered, and it must have been registered. Registering a document that did not need registration does not fix everyone with notice of it.

Explanation II: possession is notice. Any person acquiring immovable property, or a share or interest in it, is deemed to have notice of the title, if any, of any person who is for the time being in actual possession of it.

This is the most practical rule in the section. A buyer must look at the land and ask who is on it. If a tenant, or a person under an agreement of sale, is in actual possession, the buyer is fixed with notice of whatever title that person has, whether or not he asked. It is also the rule that makes the possession in [Part Performance] dangerous for a later purchaser.

Explanation III: an agent's notice is the principal's. A person is deemed to have had notice of a fact if his agent acquires notice of it while acting on his behalf in the course of the business to which that fact is material.

The three conditions are visible in the words: the agent must acquire the notice while acting for the principal, in the course of that business, and the fact must be material to it. Something an agent learned years earlier in another job is not imputed.

The proviso is the fairness valve. If the agent fraudulently conceals the fact, the principal is not charged with notice of it as against any person who was a party to the fraud or otherwise knew of it. So the principal is protected against a dishonest agent, but only against people who were in on the fraud.

A worked example

Farid agrees to buy a flat at Kurla from Meera. Three facts are true and Farid knows none of them.

One. Meera had mortgaged the flat to a bank two years earlier by a registered deed, properly registered and entered in the book under section 51 of the Registration Act 1908.

Two. A tenant, Sanjay, has been living in the flat for four years under an oral arrangement and is there on the day Farid inspects.

Three. Farid's advocate, engaged to do the title search for this very purchase, found a decree against Meera in the register and forgot to mention it.

Take them in turn.

The mortgage is caught by Explanation I. A mortgage of immovable property for that value must be registered, it was registered, and the registration was completed properly. Farid is deemed to have notice from the date of registration, and it makes no difference that he never opened the register.

Sanjay's tenancy is caught by Explanation II. Sanjay was in actual possession, so Farid has notice of Sanjay's title whether or not he asked who the man in the flat was. Had Farid asked and been lied to, the answer would be the same: the Explanation is about possession, not about enquiry.

The decree is caught by Explanation III. The advocate acquired the notice while acting for Farid, in the course of the very business of buying this flat, and the fact was material to it. It is imputed to Farid. If the advocate had fraudulently concealed it, the proviso would protect Farid, but only against Meera if she was party to the fraud.

Farid therefore buys with notice of all three, and cannot claim any of the protections in this Act that are given only to a transferee without notice.

What it does NOT mean

Attestation does not mean the witness knows what is in the document. He witnesses the execution, not the contents. A witness who cannot read may still attest.

A party to the document cannot attest it. The witness attests the executant's signing; a person cannot witness his own execution. The mortgagee, however, has been held capable of attesting in some circumstances, which is why the safe practice is to use independent witnesses.

Constructive notice is not the same as suspicion. The section requires wilful abstention or gross negligence. A buyer who makes the ordinary enquiries and finds nothing is not fixed with notice merely because something existed.

Registration is not notice of everything. Explanation I applies only where registration was required by law and was properly completed. A voluntarily registered document does not fix the world with notice.

Possession must be actual. Explanation II speaks of a person "for the time being in actual possession". A person with a right to possession who is not on the land does not attract it.

Distinctions

Quick revision

• Section 3 defines "instrument" as a non-testamentary instrument, so a will is outside it.
• Attestation: two or more witnesses; each saw the executant sign, or saw another sign by his direction, or got a personal acknowledgement; each signed in the presence of the executant; they need not be together; no particular form.
• The unwritten requirement is animus attestandi, the intention to attest. A scribe or an identifying witness does not qualify.
• Notice has three forms: actual, constructive, imputed.
• Constructive notice arises from wilful abstention from an enquiry one ought to make, or gross negligence.
• Explanation I: a required and properly completed registration is notice from the date of registration.
• Explanation II: actual possession is notice of the possessor's title.
• Explanation III: an agent's notice is the principal's, if acquired in that business on a material fact; the proviso saves the principal where the agent fraudulently concealed.
• Attestation matters because section 59 (mortgage) and section 123 (gift) require it.

Test yourself

1. A mortgage deed is signed by the mortgagor, by the scribe who wrote it, and by one neighbour who watched the mortgagor sign. Is it attested within section 3? No. Section 3 requires two or more attesting witnesses. The scribe signed to say he wrote the document, not to witness the execution, so he lacks animus attestandi and does not count. Only the neighbour qualifies, which is one witness, and one is not enough. The deed is not attested, and a mortgage that is not attested does not satisfy section 59.

2. Can a person attest a document if he did not see it signed? Yes, on the third limb. It is enough that he received from the executant a personal acknowledgement of the signature or mark. He must still sign the instrument in the presence of the executant.

3. Must both attesting witnesses be present at the same time? No. Section 3 provides in terms that it is not necessary that more than one of the witnesses should have been present at the same time.

4. Priya buys a plot without visiting it. A man has been farming it for six years under an unregistered agreement of sale. Does Priya have notice? Yes, by Explanation II. He was in actual possession for the time being, so Priya is deemed to have notice of his title, and her not having gone to look makes no difference.

5. What are the two conditions before Explanation I fixes a buyer with notice of a registered document? That the transaction was one which the law required to be effected by a registered instrument and it has been so effected, and that the registration was completed in the manner prescribed by the Registration Act 1908, with the instrument or memorandum duly entered or filed in the books kept under section 51 of that Act.

6. An agent buying land for his principal is told by the seller about an easement over the land, and hides it because he is being paid by the seller. Is the principal fixed with notice? Under Explanation III the agent's notice would be imputed, but the proviso applies: where the agent fraudulently conceals the fact, the principal is not charged with notice as against a person who was a party to the fraud or otherwise knew of it. The seller was a party to it, so the principal is not fixed with notice as against the seller.

7. Is a debt secured by a mortgage of immovable property an actionable claim? No. The definition in section 3 expressly excludes a debt secured by mortgage of immoveable property, and also one secured by hypothecation or pledge of moveable property.