 Instrument: It is a non testamentary instrument

which means this Act does not deal with the

testamentary transfers(wills etc.,)
 Attestation (animo attestndi):

(1) There must be at least two or more attesting

witnesses.
(2) The witness must be a major and of sound mind.
(3) Each witness must see the executant or any
authorized person signing or affixing the thumb
impression so that it can be confirmed that the
document executed with free consent and there
was no force, fraud or undue influence.
(4) There is no particular format is acceded to the
attestation.
(5) Each witness must attest in the
presence of the executant.
(6) But it shall not be necessary that more
than one of such witnesses shall have
been present at the same time.
(7) A party to the transaction cannot himself
be an attesting witness.
(8) The attesting witness may not be
needed to know the contents of the
document.
(9) Attestation shall be read with Section
68 of the Indian Evidence Act,1872.
Kumar Harish Chandra Singh Deo
v. Bansidhar Mohanty (1966) 1
SCR 153: AIR 1965 SC 1738
 Brief Facts: The appellant and the Respondent 1 were
close friends.
 The appellant was in need of money.
 The Respondent 1 was feeling embarrassed to take
interest from his friend on the money advanced by him.
 Instead of directly executing a document on his own
name for the property to be mortgaged for the money
advanced, he asked his one common friend, one
Jagannath Debatha, to be a mortgagee.
 The mortgage deed was executed by the
appellant in favor of Jagannath Debatha
for a consideration of Rs.15,000/-.
 The appellant undertook to repay the
money advanced together with interest
within one year, but failed to do so.
 That document was attested by some
independent person and also by the
Respondent 1.
 ISSUE: The prime question was whether
the interested party to the agreement
can be the witness?
 Observations:
 It is no doubt true that there were only two
attesting witnesses to the mortgage deed, one of
whom was Respondent 1, that is, the lender
himself.
 S.59 of the TPA which provides that a mortgage
deed shall be attested by at least two witnesses
but it does not debar the lender of money from
attesting the deed.
 Definition U/S.3 of the TPA is similar to that
contained in the Indian Succession Act, 1929, it
will be seen that it also does not preclude in
terms the lender of money from attesting a
mortgage deed under which the money was lent.
 No other provision of law has been brought to our
notice which debars the lender of money from
attesting the deed which evidences the transaction
where under the money was lent.
 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.
 No doubt, neither the definition of “attested” nor S.59
of the TPA debars a party to a mortgage deed from
attesting it.
 It must be borne in mind that the law requires that the
testimony of parties to a document cannot dispense
with the necessity of examining at least one attesting
witness to prove the execution of the deed (S.68 of
the IEA).
 Inferentially, it debars a party from attesting
a document which is required by law to be
attested.
 Where, 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.
 It would not be available against a person
who has lent money for securing the
payment of which a mortgage deed was
executed by the mortgagor but who is not a
party to that deed.
 Conclusion:
 A distinction was thus drawn in this case
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 it was said that the latter
was not incompetent to attest the deed.
 In this view we uphold the decree of the
High Court and dismiss the appeal with
costs.
M.L.Abdul Jabbar Sahib v.
H.Venkata Sastri (AIR 1969 SC
1147: (1969) 1 SCC 573
 The appellant has lent some money to one Hajee
Ahmed Batcha against the two promissory notes issued
by the later person to the appellant.
 The Appellant filed a suit in the court under the
summary procedure.
 The debtor obtained the leave to defend the suit on
condition of his furnishing the security for a sum of
Rs.50,000/- by executing a security bond in favor of the
registrar of the court charging several immovable
properties for the above said amount.
 The condition of the bond was that if he paid
to the appellant the amount of any decree
that might be passed in the aforesaid suit the
bond would be void and of no effect and
that otherwise it would remain in full force.
 That document was attested by one person.
 It was also signed by an advocate who
explained the document to the debtor.
 The document was registered, the Registrar
identified the witnesses and also the sub-
Registrar signed the document.
 Hajee Ahmad Batcha died on Feb 14, 1954.
 The decree was passed in favor of the appellants
for Rs.49,891/13/- with interest and costs.
 The appellant filed an application for making
absolute the charge decree and directing sale of
properties.
 The commissioners sold the properties and the
sale proceedings were deposited in the Court.
 The 3 Respondents were simple money creditors
of the same debtor.
 They filed a suit against him and got the decree for
Rs.5,500/-.
 They pleaded for an order for reteable distribution
of the assets realized by the appellants.
 The appellants opposed the order.
 The respondents contended that the security
bond was not valid as it was not attested by two
witnesses.
ISSUES:
1. Is the security bond to be attested by two
witnesses?
2. If not, is it invalid?
3. Does the decree direct sale of the properties
for the discharge of a charge thereon, and
4. Are the respondents entitled to rateable
distribution of the assets held by the Court?
 OBSERVATIONS:
 Essential conditions of a valid attestation u/s.3 are:

1. Two are more witnesses have seen the executant

sign the instrument or have received from him a
personal acknowledgment of his signature.
2. With a view to attest or bear witness to this fact
each of them has signed the instrument in the
presence of the executant.
The evidence does not show that the registering
officer put his signature on the document with the
intention of attesting it.
Nor it is proved that he signed the document in the
presence of the executant.
 Likewise the identifying witnesses put their
signatures cannot be regarded as attesting
witnesses.
 It follows that the document was attested by one
witness only.
 For 2nd question the respondents referred S.100
r/w S.59 of the TPA that a charge can be created
only by a document signed, registered and
attested by 2 witnesses where the money
secured is Rs.100/- or upwards.
 But there is no provision of law which requires
that an instrument creating the charge must be
attested by witnesses.
 Before S.100 was amended by Act 20 of 1929 it
was well settled that the section did not prescribe
any particular mode of creating a charge.
 The amendment substituted the words “all the
provisions hereinbefore contained which
apply to a simple mortgage shall so far as
may be, apply to such charge”.
 The object of the amendment was to make it
clear that the rights and liabilities of the parties in
case of a charge shall be the same as that of a
simple mortgage.
 The amendment was not intended to prescribe
any particular mode for the creation of a charge.
 In Bapurao v. Narayan[AIR 1950 Nag 117], it
follows that the security bond was not required
to be attested by witnesses.
 It was duly registered and was valid and
operative.
 In our opinion, the decree on its true
construction declared that the security bond
created a charge over the properties in favor of
the plaintiffs for payment of the decretal amount
and gave them the liberty to apply for sale of the
properties for the discharge of the encumbrance.
 Conclusion: We find that the immovable
properties have been sold in execution of a
decree ordering sale for the discharge of
the encumbrance thereon in favor of the
appellant.
 The proceeds of sale after defraying, the
expenses of the sale must be applied in
the first instance in discharging the amount
due to the appellant.
 Only the balance left after discharging this
amount can be distributed amongst the
respondents.
 In the result, the appeals are allowed.
 Padarath Halwai v. Ram Narain AIR
1915 PC 21
 Brief facts: These are consolidated appeals from
decrees.
 The sale of village was to satisfy the mortgage deed
for the payment of Rs.66,809/- .
 The mortgagors were two pardanashin ladies.
 On behalf of the appellants it has been contended
that the evidence which was given on the remand in
proof of the attestation was unreliable, and even if
accepted as true, did not prove that the two attesting
witnesses who gave evidence on remand had seen
the mortgagors sign their names to the mortgagee.
 Issue: Whether the witnesses who have not seen
the executors as they were not allowed to appear
in the public said to have valid attestation or not?
 Observations: .
 These mortgagors were did not appear before
the attesting witnesses, and consequently their
faces were not seen by the witnesses.
 However, the witnesses were well acquainted
with the voices of the ladies.
 And their Lordships are satisfied that these two
attesting witnesses did identify the mortgagors at
the time when the deed was executed.
 The mortgagors were, on the occasion of the
execution of the mortgage deed, brought from
the Zenana apartments of the house in which
they were to an ante-room to execute the deed.
 In the ante-room the ladies seated themselves
on the floor, and between them and these two
attesting witnesses there was a chick, which
was not lined with cloth, hanging in the doorway.
 These two attesting witnesses recognized the
ladies by their voices, and they say that they
saw each lady execute the deed with her own
hand, although owning to the chick they were
unable to see the face of either of the ladies.
 Conclusion:
 The Lordships accepted the evidence of these
two attesting witnesses as true.
 And held that the mortgage deed was duly
attested by at least two witnesses within the
meaning of S.59 of the TPA.
 It is not disputed that the mortgage deed was in
fact the deed of the two Paradhanashin ladies,
Musammat Niamat Bibi and Musammat Kamar-
un-nisa Bibi, the mortgagors.
 “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 Court recognize as
affording grounds for relief, whether such debt or
beneficial interest be existent, accruing,
conditional or contingent.
 “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 Court recognize as affording
grounds for relief,
 whether such debt or beneficial interest
 be existent, accruing, conditional or contingent.
 Actionable claim:
(a) It means a claim to an unsecured
debt; or
(b) a claim to any beneficial interest in
movable property not in actual or
constructive possession of the claimant.
 But not the debt secured by a mortgage
of immovable property or by
hypothecation or pledge of movable
property.
 Examples :
 (1) Claims for arrears of rent.
 (2) A share in partnership.
 (3) Claim for the money due under any insurance
policy.
 (4) A claim for the return of the earnest money.
 (5) A claim for unpaid dower for a Muslim woman.
 (6) Right to get back the purchase money when
sale is set aside.
 Case: Sunrise Associates V. Govt.NCT of Delhi,
AIR 2006 SC 1908 held that sale of lottery tickets
amounts to transfer of an actionable claim.
 Notice:
1. Actual or express notice: Information or
knowledge must be given at the time of the
transaction but not prior or after.
2. Constructive or implied notice: (having the
power and intention to have and control
property but without direct control or actual
presence upon it).
a) Wilful abstention from enquiry or search: It
shows want of bona fide.
b) Gross negligence: It indicates an attitude of
mental indifference to obvious risks.
c) Rule of caveat emptor- buyer be must
aware.
Lloyds Bank Ltd v. P.E.Guzdar
& Co.(1929) 56 Cal 868
 Brief Facts: A deposited title deeds on
mortgage with a bank for some amount.
 After some years he went to the bank “X” and
said that he wants to clear the overdraft by
selling the property for which he needs the
documents so that he can get good price for it.
 The bank has returned the documents.
 When he received the documents he kept with
another bank “Y” for another sum of amount for
another mortgage.
 Issue: Whether the bank “X” was committed
negligent or not.
 Observations: The court was observed that
the bank “X” act was not of normal
negligence and that was of gross neglignce.
 Conclusion: It was held that the bank “Y”
debt will get priority over the bank “X” debt.
 Tilakdhari v. Khedan Lal, AIR 1921 PC 112.
It was held that the omission to search the
registers kept in registration office is a gross
negligence and further held that registration
amounts to notice as well.
 Naval Kishore v. Municipal Board of Agra,
1943 All 453. It was held that inspection of the
records of the municipality for any unpaid
taxes are in arrears is the basic obligation on
the purchaser if not checked then it is
considered to be gross negligent.
 The registered instrument has been duly
entered in books kept under section 51 of the
Registration Act.
 Notice on the easement rights etc.,
 Notice on tenancy, lease etc.,
 Notice on lis pedens
 Notice to agent, or any power of attorney.
 Ahmedabad Municipal Corp. v.
Haji Abdul Gafur Haji Hussenbhai
AIR 1971 SC 1201: (1971)
 Brief facts: The subject matter property in
controversy is belonged to one Haji Nur
Muhammad Haji Abdulmian.
 He apparently ran into financial difficulties and
insolvency proceedings were started against him.
 By an interim order receivers took charge of his
estate and finally he was adjudicated as insolvent
in 1950.
 The property was auctioned and bought by
the respondent for Rs.22,300/-.
 The appellant was enforcing the respondent
to pay the municipal taxes due as arrears
during the period the property held by the
receivers 1949-50 to 1953-54.

 Issue: Whether the action taken by the

appellants by attaching the respondent
property was illegal and ultravires.
Observations:
The trial court declined for the prayer of
attachment of the property.
The respondent did not contest the case in this
Court and it was heard exparte
 To begin with it was contended that there is no
warranty of title in an auction sale.
 In general at the auction sale the purchaser buys
the property subject to all the defects of title and
the doctrine of caveat emptor applies to such
purchaser.
 “Nawal Kishore” case held to be a
good law for the general transactions
of the property in regard to the taxes
due to the municipality.
 The charge is subject to prior payment
of land revenue due to the State
Government on such building or land.
 S.100 of TPA in effect provide that the property is
liable to sale in enforcement of the charge.
 And that if this liability is fixed by a provision
expressly dealing with the subject, then the charge
would be enforceable against the property even in
the hands of a transferee for consideration
without notice of the charge.
 This submission is unacceptable.
 Second half of S.100 is about the general
prohibition that no charge shall be enforced
against any property in the hands of a transferee
for consideration without notice of the charge.
 And the exception to this general rule must be
expressly provided by law.
 In the Roop Chand Jain case it was held
that a bona fide purchaser buys property
free of all charges.
 He said to have constructive notice
when ordinary prudence and care
would have impelled him to
undertake an inquiry which would
have disclosed the charge.
 If the charge is through the registered
document then the purchaser is
expected to check for the registers
before effecting the purchase.
 The circumstances by which a deeming fiction
impute notice to a party are based, on his wilful
abstention to enquire or search which a person
ought to make or, on his gross negligence.
 This presumption of notice is commonly known
as constructive notice.
 Though originating in equity this presumption
of notice is now a part of our statute and we
have to interpret it as such.
 Wilful abstention suggests conscious or
deliberate abstention.
 And gross negligence is indicative of a
higher degree of neglect.
 Negligence is ordinarily understood as
an omission to take such reasonable
care as under the circumstances is the
duty of a person of ordinary
prudence to take.
 The question of wilful abstention or
negligence is generally is a question
of fact depending upon the facts and
circumstances of each case, no
straight jacket formula for all
contingencies can be laid down.
 In the case at hand the receivers had an
obligation to pay the municipality arrears
time to time as they were specifically
appointed for that property.
 Further the property at dispute is already
charged and the rents accruing upon that
property could have been paid in lieu of
the municipality taxes.
 In fact the respondent tried to enquire
with the municipality for any dues pending
on the property for which the municipality
has not given any response.
 Conclusion: The question of constructive
notice has to be approached from
equitable considerations.
 we feel that the municipal corporation in
the present case was far more negligent
by not pursuing the case in the
insolvency court against the
receivers for the dues against the
property.
 Hence in this case the appellant was
far more negligent and blameworthy
than the plaintiff.
 Md.Mustafa v. Haji Md.Isa
AIR 1987 Pat 5
 Brief Facts: The respondent had a big building
where there were total 7 tenants on the rent and
the plaintiff is also one of them.
 The defendant needed money so he wants to sell
the house.
 As per the plaintiff there were negotiations took
place between these two and claimed to be they
were agreed for Rs.20,000/-.
 And another claim was that the defendant
needed for an exigency so the plaintiff
provided Rs.7,000/- to him and for which the
defendant executed a document and agreed
upon that the sale deed will be executed when
the remaining amount will be paid.
 Meanwhile the respondent sold the property to
the defendant’s father for a consideration of
Rs.24,000/- and they were given possession
also, they claim that there was no notice of
prior agreement with the plaintiff
 Issues:
(1) Whether the agreement entered with
the Plaintiff is valid or not?
(2) Whether the defendants 2 and 3 are
bona fide purchasers for value
without notice of the prior agreement
or not?
 Observations:
 As per the Plaintiff he has got the possession of
the entire property.
 In that case he was supposed to realize the rents
from the property of which he failed to prove that
he has collected rent from the six other tenants.
 He was not able to give other tenants names
who were in possession of the different
portions of the building.
 This cannot be the natural conduct of a
person who claims to have come in actual
possession of the entire building.
 The tenants gave the evidence in the court that
they used to pay the rent to the respondent and
after the sale deed in favour of the defendants 2
and 3 the rents were paid to them.
 “Any person acquiring any immovable
property or any share or interest in any such
property shall be deemed to have notice of
the title, if any, of any person who is for the
time being in actual possession thereof”.
 The above observation is very broad
contention of the appellant but the facts and
circumstances of the present case are quite
different.
 Conclusion:
 In this case the Plaintiff’s sole evidentiary value
only available and even that was not consistent
throughout.
 As per the facts there was no valid genuine
document, because a bona fide purchaser for
value without notice cannot be bound by any
prior agreement between his vendor and the
plaintiff.
 Here the plaintiff’s claim of agreement is
found to be fraud.
 H.N.Narayanaswamy Naidu v. Smt.
Deveeramma AIR 1981 Kant 93
 Brief Facts: Here the Appellant is the Defendant 3
and the Respondent is the Plaintiff.
 The Plaintiff averred that defendant 1 and his
mother sold the suit properties as per Ext-2,
 but they obtained an agreement to re-convey as
per Ext-3 on the same day under which the
Plaintiff agreed to re-convey the properties to the
vendors in case they pay the entire
consideration after 6 years within 6 months.
 Subsequently the vendors were in need of
money, they further executed an agreement that
they would be released from the re-conveyance
under Ext P-1 for that purpose the suit was
instituted to execute the registered release deed.
 Meanwhile the D-3 purchased the right to re-
conveyance from the D-1 and D-2.
 He further contended that he obtained the
right bona fide and without knowledge of Ex
P-1 for consideration and hence it was not
binding on him.
 Issue: Whether D-3 was a bona fide purchaser
for value without notice of the right to get the
reconveyance from D-1 and D-2.
 Observations:
 S.19(b) of SRA reads that “Except as otherwise
provided by this Chapater, Specific Performance
of a contract may be enforced against ……
(b) any other person claiming under him by a title
arising subsequently to the contract, except a
transferee for value who has paid his money in
good faith and without notice of the original
contract.
 Here, the D-3 who comes to the Court with the
pleading that he was a transferee for value.
 He has paid the money in good faith and without
notice of the original contract EXT P-1.
 The burden to prove that there was no notice is
lies on the Defendant 3.
 S.3 of the TPA states:

“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”.
 Explanation II to the Definition reads:
“Any person acquiring any immovable property or
any share or interest in any such property shall
be deemed to have notice of the title, if any,
of any person who is for the time being in
actual possession thereof”.
Relying on these the D-3 not only had actual
notice but also constructive notice as
contemplated in the above definition.
 The facts of the case are such as would induce
any average prudent man to go and enquire with
the person in possession of the property here it is
the Plaintiff.
 In general in the case of re-conveyance deed is
executed then definitely there shall be a clause
that
“during the possession of the property any amount
spent for major repairs or what was the nature of his
rights etc”.,
Thus it is obvious that but for the wilful
abstention from enquiry, if he would have done
he would have come to know the entire facts
and hence he should be deemed to have the
notice of the rights of the plaintiff.
 Appreciating evidence on record it was proved that
he was staying very near to the premises and
that in all probability he was aware of all the
dealings between the properties and it shall be
deemed to have notice of the rights of the
Plaintiff.
 D-3 did have notice of the rights of the plaintiff and
of the agreement entered into u/E-P1.
 That is further made probable by the fact that in
Ex.D-1, the D-3 has taken care to see that
“the vendors are made liable for damages and
return of purchase money in case the sale falls
through for any reason, on the charge of their
properties-movable and immovable”.
 Conclusion:
 It was submitted that D-3 has not taken
any action for the properties re-
conveyed within the time stipulated.
 It is a settled law that re-conveyance is a
concession given by the vendee.
 It has to be strictly observed by him.
 Here time is the essence of the contract.
 Hence the appeal fails and dismissed.
Ram Niwas v. Bano (2000)6 SCC 685 :
AIR 2000 SC 2921
 Brief facts: The appellant is the tenant of the
shop owned by the Defendant.
 He claims to have entered into an agreement
with the R-5 as a vendor to purchase the suit
shop(Exhibit-1) for a sum of Rs.9200/- and
paid a sum of Rs.3200/- in cash and undertook
to pay remaining amount of Rs.6000/- at the
time of execution of sale deed.
 The tenant and the vendor are said to be
closely related.
 Defendants 2 to 5 purchased the shop from the
vendor for a sum of Rs.20,000/- under Exhibit
4.
The purchasers contested the suit denying
genuineness of E-1 and taking the plea that
they are bona fide purchasers of the shop.
 Issues: Whether the suit property sold to the
Plaintiff or not?
 Whether the Defendants 2 to 5 purchased the
disputed shop after paying full price and they
had no knowledge of the alleged agreement to
sell?
 Observations: As per the Defendants
they purchased the shop in good faith.
 Hence they should be allowed the
possession of the property u/s 19 (b) of
the Specific Relief Act,1963.
 The main ingredients of this section are:

(a) He has purchased for value the

property (which is the subject-matter
of the suit for specific performance
of the contract).
(b) He has paid his money to the vendor
in good faith.
 (c) He had no notice of the earlier contract
for sale( specific performance of which is
sought to be enforced against him)
 The above said provision is based on the
principle of English law which fixes priority
between a legal right and an equitable right.
 “a bona fide purchaser for valuable
consideration who obtains a legal estate at
the time of his purchase without notice of a
prior equitable right is entitled to priority in
equity as well as at law”…(Snell’s Equity)
 Where there is a tenant in possession
under a lease, or an agreement, a
person, purchasing part of the estate,
must be bound to inquire, on what
terms that person is in possession.
 “Any person acquiring any immovable
property or any share or interest in any
such property shall be deemed to have
notice of the title, if any, of any person
who is for the time being in actual
possession thereof”.
 The purchasers have acquired a legal right under
sale deed (Ext.4).
 The right of the tenant under Ext.1. even if it is true
and valid then also it is only an equitable right and
it does not affect the purchasers if they are bona
fide purchasers for valuable consideration without
notice of that equitable right.
 Here indeed the word “notice” should have
been used instead of the word “knowledge”
because notice is a broad word in comparison
to knowledge.
 On appreciating evidence and referring to
S.19(b) of SRA found that the contesting
respondents were bonafide purchasers of the
suit shop and they paid consideration of
Rs.20,000/- without having knowledge of the said
agreement (Ext-1).
 It could not be taken or presumed that the
defendant’s vendees had knowledge of the
earlier transaction and pointed out that the
vendor gave out that the tenant was his
relative, which he would take back and deliver to
them so there was no need to make further
inquiry.
 Conclusion:
 On the above discussion we hold that
the purchasers will be deemed to have
notice of Exhibit 1 and that should be
true and valid.
 Accordingly the appeal allowed and the
Plaintiff is entitled to the discretionary
relief of specific performance of a
contract in accordance with law and
remand the case to the trial judge.
S.4 Enactments relating to
contracts to be taken as part of
Contract Act and supplemental to
the Registration Act.
 The chapters and sections of this Act
which relate to contracts shall be taken
as part of the Indian Contract Act, 1872.
 And S.54, paragraphs 2 and 3, and
sections 59, 107 and 123 shall be read
as supplemental to the Indian
Registration Act, 1908.