Affidavit & Conveyancing

Affidavits are used commonly and for various reasons, but it is not same as
an agreement or a contract. Generally, people don’t have a good handle on
the definition of an affidavit. There are many occasions when a person comes
across an affidavit without his knowledge.

What is an affidavit?
An affidavit is a willingly made declaration in writing, signed by the deponent
(person making the affidavit) and accompanied by an oath (vis-à-vis the
authenticity of the contents). “Affidavit” has its roots from a Latin word which
literally means to “pledge ones faith.” It is to be signed and witnessed (vis-à-
vis the genuineness of the affiant’s signature or his identity) by a notary
authority. It is also signed without any cross-examination by the affiant. The
difference between an affidavit and a deposition is that the former is
voluntary but the latter is not.

Another way to think of an affidavit is as a sort of written court testimony.

Where, in a court of law, you are required to place your hand on a Holy Book
and swear that you’re telling the truth and nothing but the truth, similarly on
an affidavit, you do this in writing. You’re under oath, but you’re testimony is
on paper. They are important in a way that the oral
submission/evidence/testimony is only admissible before a judge but an
affidavit can be used as an alternative to this.

However, misleading information in an affidavit can lead to perjury charge

against the affiant but if the affiant forgets to include something or omits
something then he cannot be penalized for such omission. If the affiant
mentions something in the affidavit which is not an established fact or is not
backed up by some evidence, then he will have to mention that it is his
‘opinion’.

The law on affidavits in India is governed by Section 139, Order XIX of the
Code of Civil Procedure and Order XI of the Supreme Court Rules. Judiciary
at many instances have upheld the importance of the veracity of an affidavit
by the virtue of the aforementioned rules and sections.

In 1910, Calcutta High Court in the case of Padmabati Dasi v. Rasik Lal
Dhar [1]adhered strictly to Order XIX Rule 3 of the CPC and laid down
that every affidavit should clearly express how much is a statement of the
affiant’s knowledge and how much is a statement of his belief, and the
grounds of belief must be stated with sufficient particularity to enable the
Court to judge whether it will be correct to rely on such belief.
In another case, M/s Sukhwinder Pal Bipan Kumar and others v. State of
Punjab and other [2], this Court reiterated the aforementioned principle and
held that under Order XIX, Rule 3 of the Code of Civil Procedure it was
mandatory for the affiant to disclose the nature and source of his knowledge
and information with sufficient particulars. The Court also held that in a
petition where allegations are not affirmed, as aforesaid, it cannot be
regarded as supported by an affidavit as required by law.

Mode of attestation of an Affidavit

The Court, Magistrate, or other officer as aforesaid, before whom an affidavit
is made, shall certify at the foot of the affidavit the fact of the making of
such affidavit before him, and shall enter the date and subscribe his
signature to such certificate, and shall, for the purpose of identification,
mark, date, and initial every exhibit referred to in the affidavit. The name of
the verifying authority must be signed in full, and care must be taken that
his proper designation as a Civil Court or Magistrate is added.

Contents of an affidavit
Every affidavit containing any statement of facts shall be divided into
paragraphs and each paragraph need to be numbered. It will be more
convenient if each paragraph shall be confined to a distinct portion of the
subject.

Every person, other than a plaintiff or defendant in a suit in which the

application is made, making any affidavit, shall be described in such manner
as will serve to identify him clearly that is to say, by the statement of his full
name, the name of his father, his profession or trade, and the place of his
residence.

When the affiant in any affidavit speaks to any facts within his own
knowledge, he must do so positively and directly, using the words ‘I affirm’.

When any particular fact is not within the declarant’s own knowledge, but is
specified from information procured from others, the affiant must use the
words ‘I am informed’,—and, if such be the case, should add ‘and verily
believe it to be true’ – or he may mention the source from which he procured
such information. When the statement rests on facts disclosed in documents,
or copies of documents procured from any Court of Justice or other source,
the affiant shall mention the source from which they were procured, and
state his information or belief as to the truth of the facts disclosed in such
documents.
Indian Civil Procedure Code 1908 : Order
XIX (19)
As per Rule 1: A court can at any time, for which reasons can be recorded,
order that an affidavit shall be submitted to prove any facts or circumstances
as the court may wish and find reasonable.

Rule 3 (1) describes the situation or circumstances which can be explained

through an affidavit. It says that affidavits will be confined to such facts that
the deponent is able to prove through his own knowledge. However
interlocutory applications are excluded from the ambit of this rule and
therefore in interlocutory applications, statements of his belief may also be
admitted provided proper reasoning and explanation is given for the same.

Importance of an affidavit
As we have seen that an affidavit is the testimony of the deponent, sworn by
himself to be true, on the basis of which the court proceeds with trial and
examines cases on its merit, hence it becomes very vital that people speak
the truth while deposing, therefore, to prevent rampant abuse of process and
court resources, any act of lying or giving false evidence under oath is a
punishable offence under Indian Penal Code (IPC).

 Accordingly, Section 193 of IPC : Whoever intentionally gives false

evidence in any stage of a judicial proceeding or fabricates false
evidence for using it in a proceeding, will be liable to be punished
with imprisonment up to 7 years.

Essential elements of an affidavit

Certain aspects of an affidavit are of vital importance to be included, so as to
validity to the said affidavit.

1. The declaration should be made by a legal person,

2. Contents of the affidavit should relate and connect with the said
facts of the case,
3. The declaration must be in writing,
4. The language of the said declaration must be in the first person,
5. The affidavit must be signed or affirmed, before a Magistrate or
other authorised and appropriate officer.

Important case laws regarding an affidavit

 1. In the case of State of Bombay vs. Purushottam Jog Naik, the
Hon’ble Court ruled that verifications should be drafted as per
format and guidelines given in Order 19, rule 3, of the Civil
Procedure Code. The court also noted that when the facts or
information submitted by the deponent is not based on personal
knowledge, then it is vital that the sources of information should be
clearly revealed by the deponent.
2. Further, in the landmark case of Padmabati Dasi vs. Rasik Lal Dhar,
the Calcutta High Court analysed the rules governing the affidavit, a
brief of which is given below :
In this case, the deponent making the submissions did not reveal the basis
on which his testimony stands. It was not revealed what the information
was, nor did it reveal the facts on which he is making his submissions. It was
a statement that just a mere cursory or general averment to the truthfulness
of submissions made in the affidavit is not sufficient. The complete details of
what the deponent knows to be true, along with the reasons for such belief
and how much information he thinks are correct as per the advice he
received, all must be stated specifically and clearly. This rule is laid down so
that the judge can safely infer whether the statement made by the deponent
is reliable or not.

1. In Virendra Kumar vs. Jagjiwan, the court held that the source of
information or the belief deposed by the deponent in his affidavit
must be clearly and unambiguously revealed.
2. In A.K.K. Nambiar vs. Union of India, the Hon’ble Supreme Court
ruled and analysed the importance of the verification clause in a
general affidavit and said that verification is important because it
tests the genuineness and authenticity of allegations/averments
made in the petition/affidavit and also to hold the deponent
responsible for allegations or statements.
Therefore, essentially, verification enables the court to find out as to
whether it will be safe to act on affidavit evidence given by the deponent.

Process of drafting an affidavit

1. At the top, write the name of the court, tribunal in which the
affidavit is to be submitted, along with the allotted case/suit no.
2. Mention the names of parties in brief.
3. As a heading/title of the document, mention ‘AFFIDAVIT’ in the bold
and underlined font.
4. Thereafter give the details of the deponent (the person who is
testifying as to the truth of submissions made by him, in the main
petition) such as the name of the deponent and his father, age of
 deponent and his residential address, followed by ‘Do solemnly
affirm and declare as under.’
5. In the first paragraph after the introduction, the deponent has to
mention that he/she is the plaintiff or the defendant (as the case
may be) in the suit for which the affidavit is being submitted and he
has to make a declaration that he is fully aware and conversant with
the facts of the case and can testify for the same.
6. In the second paragraph, mention that the petition or submission
made in the petition has been drafted by the counsel of the
deponent and that the contents have been read over in vernacular
language, with detailed explanation made to the deponent, along
with consequences of the same, been explained to him.
7. Mention in brief the circumstances of the suit or the submission
made by the deponent. In case the main petition already contains
the details, the same need not be repeated in the affidavit and one
can mention that ‘contents of the petition are not being repeated
here for sake of brevity and therefore one shall consider the same
as a part of this affidavit.’
8. Lastly, state that it is the deponent’s true and correct statement,
followed by a paragraph about verification, which will state that
contents of the affidavit are true and correct to the deponent’s
knowledge and that nothing material has been concealed.

Sample format
IN THE_________ COURT, NEW DELHI

CIVIL SUIT NO._______ OF 2021

IN THE MATTER OF:

Xyz …..Plaintiff

VERSUS

Abc ……Defendant

AFFIDAVIT

I, __________S/O__________, aged _____ years, R/O

______________________, do hereby solemnly affirm and declare as
under:-
 1. That I am the plaintiff in the above-noted suit and fully conversant
with facts of the case and able to depose about the same.
2. That the accompanying suit/plaint has been drafted by my counsel
on my instructions and contents of the plaint have been read over
and explained to me in vernacular language and I have understood
the meaning and implications thereof and the facts stated therein
are correct.
3. That the contents of the suit are not being repeated here for the
sake of brevity and same shall be considered as part of this affidavit
also (Optional but you can also add the details of submissions to be
made before the court, to which deponent is testifying to be true to
his knowledge).

DEPONENT

VERIFICATION:

Verified at New Delhi on this______day of _____May 2021, that contents of

the above affidavit are true and correct to my knowledge and nothing
material has been concealed therefrom.

DEPONENT