~Paras Khetan*
Abstract
In this paper, the author explores the feasibility and potential for remote attestation, specifically through video-conferencing, for property transfer under the Transfer of Property Act, 1882. The paper establishes that the law, as it stands today, does not permit remote attestation through video-conferencing. It examines the benefits of allowing remote attestation while exploring international practices regarding the same. It also recognizes the possible limitations of remote attestation and provides suggestion for tackling the same.
Introduction
The Transfer of Property Act, 1882 (‘the Act’) stipulates the conditions that need to be complied with for effecting a valid transfer of property in India. One of these conditions requires a proper attestation of the transfer. Attestation has traditionally been understood as requiring the attesting witnesses and the executant to be present together. However, this may not always be possible due to geographical barriers. This has become even more evident in light of the COVID-19 pandemic which imposed restrictions on movements and physical contact.
This paper aims to explore the possibility of remote attestation for the transfer of property through video conferencing as a way to overcome these obstacles. It is limited in its scope to remote attestation through video conferencing and does not include digital attestation through digital signatures as the latter has different policy considerations behind it (for instance, digital signatures would entail digital documents which require a deeper policy analysis of whether such digitization is beneficial or not).
The Law as it Stands Today
Attestation, as defined under Section 3 of the Act, is made mandatory for making a valid transfer of property. The purpose of making attestation a compulsory condition is two-fold. First, it protects the transferor from transferring their property by fraud, force or undue influence by the other party. Second, it protects the transferee from the transferor in case the latter denies that a valid transfer took place by identifying the transferor with their signature.
The essential elements or a valid attestation to take force include a “minimum of two attesting witnesses”, “the witnesses have to see the execution of the deed or alternatively receive a personal acknowledgement from the executant”, and “witnesses have to sign in the presence of the executant”.
A pertinent question that arises while dealing with attestation is whether the witness can attest to the document through video conferencing. This would depend on the interpretation of the condition that “witnesses have to sign in the presence of the executant”. The Courts have interpreted the word ‘presence’ as implying ‘physical presence’ while attesting to the transfer. In the case of V. Kalyanaswamy v L. Bakthavatsalam (¶61), the Court hints toward the fact that the witness should be “physically available” in order to validly attest. Even though there is no explicit mention of ‘physical presence’ for attestation, the inference that can be drawn from a majority of the decisions of the Courts is that ‘presence’ has been understood as implying ‘physical presence’ (See ML Abdul Jabhar v HV Venkata Sastri (¶7) and B. Rajegowda v HB Shankaregowda (¶14)). The same has also been recognized by the NITI Aayog (p. 28).
Therefore, what emerges is that attestation through video conferencing is not permitted as things stand right now. However, the Courts have the power to interpret the phrase ‘in the presence of’ widely and can allow virtual presence through video conferencing as a valid means for attestation.
Need for Remote Attestation
The need for remote attestation has been well brought out by the pandemic. During the pandemic, nationwide travel restrictions were imposed by the government which severely affected movements. Many people due to the fear of getting infected from COVID were limiting physical contact. This posed difficulties in finding witnesses to attest to the transfer deed due to the requirement for the physical presence of the witnesses. Even though the pandemic has largely subsided, it has highlighted the need for moving towards remote attestation. Broadly, three principled arguments can be made in favour of remote attestation.
First, it furthers the executant’s freedom to choose an attesting witness of their choice. It is possible that an executant finds it difficult to find a trustworthy attesting witness within the vicinity of the property. This becomes evident when a resident of one locality wishes to buy a property in another locality. Remote attestation through video conferencing would allow people sitting in one corner of the world to attest deeds in another corner of the world. This would help in providing greater autonomy to the executant to choose their attesting witness and thereby greater comfort in entering into the transaction.
Second, it promotes inclusivity by allowing disabled persons to become attesting witnesses. Persons who are physically disabled and cannot move from one place to another with ease will greatly benefit from remote attestation. Remote attestation would further their right to participate in property transactions. Article 14 of the Indian Constitution imposes a duty upon the State to ensure equal rights and opportunities are given to everyone and that a particular class of society does not feel excluded.
Third, it has various practical benefits of saving time and costs. The time saved from travelling for the executant and the attesting witnesses is one of the most important benefits of remote attestation. Remote attestation provides one the convenience of attesting from the comfort of one’s home. This would certainly be helpful to both the transferor and the witnesses. Additionally, huge amounts of costs are saved from remote attestation in terms of travel expenses.
All the above benefits of remote attestation make attestation more inclusive, convenient and cost-saving. This would make the transfer of property easier and quicker. Therefore, remote attestation would encourage transfer of property and facilitate economic growth.
One of the strongest arguments in favour of remote attestation is the inevitability of the same. Digitization is a must for modernizing the transfer of property in a world where technology is omnipresent and displacing traditional forms of transfer. The move towards digitization is visible across different fields. The call for extending the applicability of the IT Act to the sale of immovable property indicates the need for digitization. The launching of the e-Sanad portal by the government for document verification and attestation for Indian citizens points out that the government is on-board with digitization. The linking of Aadhar for availing social benefits also lends credence to the same. This has also been recognized by the Courts in India. In Charanjit Kaur Nagi v Govt. of NCT of Delhi (¶15), the Court recognized that video-conferencing has become the norm and not allowing the same would amount to ignoring the reality of today’s world. The Court, in that case, interpreted Rule 3 of the Marriage Registration Rules, a delegated legislation under the Hindu Marriage Act 1956, to allow virtual presence instead of physical presence in compelling situations.
International Practices Regarding Remote Attestation
It would be helpful to look at the position regarding remote attestation in other common law jurisdictions in the context of both transfers of property and wills. The provision regarding attestation of property and wills is similarly worded in India (See S.63(c) of the Indian Succession Act). Additionally, the concerns and the rationale (possibility of fraud) behind attestation remain the same in both these contexts. Therefore, it would be appropriate to look at remote attestation of wills as well.
Few states in the USA such as Florida and Indiana have permitted remote attestation of the conveyance deed for transfer of property. Similarly, few states in the USA such as Arizona, Florida, Indiana, and Nevada have sanctioned remote attestation of wills. The Uniform Electronic Wills Act (a federal law) allows remote attestation through video conferencing.
New South Wales, a state in Australia, has allowed remote attestation of conveyance deeds for the transfer of property. Other states such as Victoria and Queensland along with New South Wales have made provisions for remote attestation of wills. Similarly, in Canada, several provinces such as British Columbia and Ontario have also introduced remote attestation of wills through video conferencing. Therefore, what emerges is that sanctioning remote attestation in India would be in line with the global trend of moving towards digitization.
In the UK, the Law of Property (Miscellaneous Provisions) Act of 1989, requires that the attesting witness must be physically present. This view has been accepted by the Law Commission as well. Therefore, remote attestation through video conferencing is not permitted in the UK. Similarly, the Wills Act of 1837 did not allow remote attestation of wills. However, during the pandemic, the UK government temporarily amended the Wills Act to clarify that “presence” includes presence using video conferencing. Unfortunately, it did not change the position regarding transfers of property. This can be justified by the pressing need for making wills during the pandemic (due to a high probability of death) as opposed to any necessity for effectuating the transfer of properties. Nonetheless, there are crucial lessons that can be learnt and applied to India from the amendment to the Wills Act.
Possible Concerns and Suggestions
There might arise some concerns with respect to the move towards remote attestation through video conferencing. This may include the possibility of fraud and undue coercion due to a lack of physical presence of attestors. It is possible that video conferencing would not be able to preclude the possibility of a person threatening the executant from outside the frame of the camera. Additionally, it might be possible that a poor internet connection may disrupt the attestation process and may keep the parties in limbo regarding the validity of the attestation.
Therefore, it is important to lay down sufficient guidelines for the same to ensure that remote attestation is a hassle-free process. Drawing from the guidelines issued by the UK government, it is important that the witnesses can see the executant writing their signature on the document. The executant should also show the document page-by-page to the witnesses. The witness should also be provided a digital copy of the document beforehand so that he can conveniently check if the same document is being signed. The executant can also sign without the presence of the witnesses provided that a personal acknowledgment (can be done through video conferencing) is given to the witnesses. After this, the same document should be taken (either personally or through post) to the witnesses for their signatures. The same process as above should apply. For greater protection, the parties should ask for a room scan to preclude the possibility of any person threatening the executant or the witnesses. This could be followed by more room scans at random intervals of time to ensure the continuous absence of such a person. Additionally, a lawyer should be present in the meeting to supervise the entire transaction and the entire meeting should be recorded. The government can also prescribe a particular audio-visual platform for greater protection. These are some of the guidelines that could be issued by the government.
Concluding Remarks
Even though, as mentioned earlier, the judiciary has the power to include remote attestation within the existing law, it would be better if the same is done by a legislative act. Due to the specific policy considerations behind this reform, it is important that the same is spearheaded by the legislature in consultation with all the stakeholders rather than being bulldozed by the judiciary. Such legislative deliberation may also lead to amendments across different Acts involving attestation such as Indian Succession Act for wills. The immense importance of remote attestation, as highlighted in the paper, necessitates that the same is brought to India. India missed the pandemic-driven train of reforms; however, it is still not too late to bring in remote attestation. This could also pave the way towards digital transactions (involving digital documents and signatures) relating to immovable property, which is currently barred by the IT Act, 2000 (First Schedule).
There is a possibility that remote attestation could not be used by everyone in India due to low levels of tech-literacy. Therefore, it is of utmost importance that the government spread tech-literacy and ensure that the entire process of remote attestation is simple and easy.
*Paras Khetan is a third-year student enrolled in the BA.LLB (Hons.) program at the National Law School of India University, Bangalore.