Necessity of Witnesses for Executing a Contract

Justice is a contract of expediency, entered upon to prevent men harming or being harmed.

- Epicurus

A witness is anyone who has witnessed any act or series of acts taking place. The Indian Evidence Act provides that a person to qualify as a competent witness must be able to perceive the questions put before them and be able to provide rational answers to such questions. Typically, in a contract, a space is designated for name and signature of witnesses.

Let’s find out if witnesses are a necessity for executing a contract.

The Indian Contract Act, 1872 defines a contract as, an agreement enforceable by law.[1]

Thus, a contract consists of two elements:

1. An agreement

2. Legal obligation, i.e., a duty enforceable by law.

A contract is an agreement where two (or more) parties consent to do or to refrain from doing something upon a lawful consideration. The Indian Contract Act,1872 lays down the essentials of a valid contract. It states that, all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.[2] From a prima-facie reading therefore, we may draw an inference that a witness is not a prerequisite to a valid contract.

As regards to the Indian Evidence Act, 1872, section 68 provides for proof of execution of document required by law to be attested. According to this section, a document cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution where a document is required by law to be attested.

The 69th Report of the fifth law Commission of India provided clarity on this subject and stated that only few documents are mandated by law to be attested. These are as follows:

1. Wills under the Indian Succession Act, 1925;

2. Mortgages for rupees one hundred or more under the Transfer of Property Act, 1882’

3. Gifts of immovable property under the Transfer of Property Act, 1882.

In the context of a contract, a witness may play an important role of confirming the identity of the parties and the veracity of the event. However, statues do not mandate presence of witnesses for a contract. However, a witness’s signature can be used for evidentiary purposes. It can be useful in case if any of the parties later deny having signed the contract and the witness can be called upon to confirm such an event. Having a witness while execution of a contract not only helps to reinforce the authenticity of the contract but also acts as a layer of security when it is questioned.

The Rajasthan High Court in Chandra Kala and Ors. v. Ram Pyari and Ors[3], held that an agreement to sell is a contract simplicitor and presence of attesting witnesses is not mandatory.

The Supreme Court in Krishnan v. Backiam & Anr.[4] observed that, "The law does not require attestation of sale deed as a compulsory one. Section 54 and 59 of Transfer of Properties do not speak about compulsory attestation. When law does not require compulsory attestation of a document, such unattested document may be proved as per the provisions of Indian Evidence Act. Section 68 of Indian Evidence Act has no application for sale deed. Section 68 of the Indian Evidence Act is applicable only to the cases where the documents are required to be attested in law.”

In conclusion, the Indian laws do not mandate the requirement of witnesses for all contracts. But, including them may lend to the authenticity of the contracts.

[1] The Indian Contract Act, 1872, § 2(h), No. 9, Acts of Parliament, 1872 (India). [2] The Indian Contract Act, 1872, § 10, No. 9, Acts of Parliament, 1872 (India). [3] S.B. Civil First Appeal No. 18/1988 [4] (2007) 12 SCC 190

The author is a 5th year law student at the Amity University Lucknow campus and views here are her own.