Execution of instrument
Is it mandatory for an attesting witness to see the executant sign the instrument? What if the witnesses are not present due to personal reasons in person during the time of execution of the instrument of mortgagor but have subsequently attested it on the acknowledgement of the signature. Will it be considered to be valid?
As per Section 59 of the Transfer of Property Act, 1882 mortgage must be effected through a registered instrument and must be signed by the mortgagor and attested by at least two witnesses. Hence it is mandatory for the attesting witness to see the executant sign the instrument. Here, the burden would be on the executor to prove the validity of the execution of the will by proving that it was very well signed by the attestator.
- Sammanika Rawat
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