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Testimonium
is the concluding part of the Deed. This clause is incorporated in order to authenticate
the execution of the instrument. It is in this part of the instrument, the
parties having interest over the schedule property sign the deed, confirming
their consent for the conveyance of the same apart from the parties to the deed.
In
case of Companies registered under the Companies Act, 1956, the following
clause is incorporated:”In Witness Whereof, the Parties have hereto set their
hands and seal the day and year first above written".
The
word "Seal" is incorporated only if the parties to the deed are a
Company. In case where the parties are individuals, it is written in the
following manner:"In Witness whereof the Parties hereunto have set their
hands/signatures on this Deed on the day and year first mentioned above".
While
drafting an instrument, it is the usual practice that the date is mentioned in
the beginning of the Deed. However, the same can be incorporated in the
Testimonium clause, if it is not incorporated earlier. Where the document is
written in the first person like Power of Attorney or Will, the date is
mentioned in the Testimonium clause.
Execution of Signatures
After
the Testimonium clause, the parties to the deed should affix their signatures. Number
of signatures varies from one document to the other. In case of an agreement,
it is necessary that both the parties to the deed should sign, while in case of
sale deed, it is sufficient if Vendor/seller alone signs. Any person having
certain right or interest on the property has to sign as Consenting Witness or
Confirming Witness. Again, if either of the parties executing the deed has been
represented by GPA Holder, then it is very important that the GPA Holder should
sign the instrument representing the principal and not in his individual
capacity. On the other hand, if it is a guardian on behalf of the minor, then
that fact has to be mentioned below signature. Executants shall affix his
signature at the end of every page of the instrument.
Illiterate person:
It
is a well established convention that if the Executants is an illiterate, thumb
impression in ink is accepted at the time of execution of the instrument. Thus,
in case of illiterate males, left hand thumb impression in ink is affixed in
place of his name and in case of illiterate female; right hand thumb impression
in ink is affixed in place of her name. However, name of the executants has to
be written either next or below the Left Thumb impression or Right Thumb
impression.
In
case of deed executed by an illiterate person, abundant caution has to be taken
before execution of the same. It is very important that the contents and covenants
incorporated in the deed has to be read out and interpreted and explained
clearly in the local language well known to the Executants and incorporate the same at the end of the deed. This practice
is also followed if the Executants is blind or even a Pardhanashin lady.
Thumb impression by educated person:
There
are instances where the Executants who is educated and knows how to sign, uses
thumb impression or mark instead of affixing the signature. In such case, the
Registering Officer should object for the same and insist the Executants to sign
since thumb impression is permitted only in case of illiterate person or those
who do not know how to sign or not possible to sign.
Corporate Body:
If
the Executants is a corporate body, the document can be signed by an Authorized
Company Director or Authorized Company Secretary. However, it is mandatory that
the person executing the document on behalf of the company has to be duly
authorized by the Board of Directors by passing necessary resolutions. If there
is no such resolution passed by the Board of Directors, the person executing
the instrument on behalf of the company will not derive any legal authority to
execute the same. The execution of such documents shall be governed by therules and regulations envisaged under the Indian Companies Act 1956.
Un-incorporate Bodies:
In
case of Societies registered under the Societies Registration Act, 1860, Clubs
and Associations, documents can be executed by a person or persons of the
society, duly authorized by the management only after passing a suitable
resolution. However, the procedure involved for execution of the documents is
governed by the rules, regulations and Bye-laws of the Society.
Partnership firm:
In
case of partnership firm, registered under the Indian Partnership Act, one
partner alone shall not be allowed to sign on behalf of all the remaining
partners. In such case, it is necessary that the remaining partners authorize
any one partner to sign on behalf of the partnership firm and also remaining
partners. The reason being that, unlike a Company, partnership firm does not
have a separate legal entity and hence a partner can neither sell nor mortgage
any immovable property standing in the name of the Partnership firm without the
written consent of the remaining partners. A partner can be authorized to sign
on behalf of the partnership firm and also the remaining partners either
incorporating the name of the person authorized to sign on their behalf in the
Partnership deed itself or executed a Registered Special Power of Attorney to
that effect. In either way, a partner duly authorized can execute the document
representing the partnership firm.
Attestation:
Attestation
means signature of two or more witnesses, each of whom has seen the executants affixing
his signature or marking on the instrument or some other person signing the
instrument under the instructions and direction of the Executants. However, it
is not necessary that more than one of such witness shall be present at the
same time. There is no particular format adopted for attestation.
It
is generally at the left hand side of the Deed, a heading "Witnesses"
is mentioned and two witnesses should sign below the caption.
Valid Attestation:
There
are three pre-requisites for valid attestation, as mentioned below:
- There must be two or more attesting witnesses.
- Each of them must have seen the Executants signing or affixing the mark on the document.
- Each of the two attesting witnesses must have signed the document in the present of the Executants.
Necessity of Attestation:
Except
few of the documents such as Mortgage and Will, remaining documents does not
require compulsory attestation. However, it is advisable to incorporate Testimonium
clause, requiring the signature of witnesses to the document in order to
testify the execution of the documents if the same is denied by the Executants.
Hence,
before executing a deed, it is very important to scrutinize the capacity of the
Executants, as to whether the Executants is signing the deed as an individual
or if representing partnership firm or a corporate body or any other bodies,
necessary authorization has been obtained before signing the document. If there
is any ambiguity pertaining to the capacity of the Executants, the execution of
the instrument itself will nullify the legal sanctity.
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