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. Executant shall affix his signature at the end of every page of the instrument.
It is a well established convention that if the Executant 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 executant 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 Executant and incorporate the same at the end of the deed. This practice is also followed if the Executant is blind or even a Pardhanashin lady.
Thumb impression by educated person:
There are instances where the Executant 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 Executant 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.
If the Executant 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 the rules and regulations envisaged under the Indian Companies Act 1956.
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.
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 means signature of two or more witnesses, each of whom has seen the executant affixing his signature or marking on the instrument or some other person signing the instrument under the instructions and direction of the Executant. 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.
There are three pre-requisites for valid attestation, as mentioned below:
1. There must be two or more attesting witnesses.
2. Each of them must have seen the Executant signing or affixing the mark on the document.
3. Each of the two attesting witnesses must have signed the document in the present of the Executant.
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 Executant.
Hence, before executing a deed, it is very important to scrutinize the capacity of the Executant, as to whether the Executant 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 Executant, the execution of the instrument itself will nullify the legal sanctity.