Wednesday, 18 March 2015

NOTARIZATION OF THE DOCUMENTS

advocateselvakumar

            In the transactions involving immovable properties, various documents such as agreement to sell, Indemnity bonds, General Power of Attorney, Deed of Undertaking, Affidavit are required to be executed. As per the Indian Registration Act, all the documents do not require compulsory registration.
The documents for which registration is optional, notarizing such documents authenticates the execution of the documents and also gives legal sanctity. Apart from the documents creating liability, Notarized documents, apart from the affidavits also play a vital role in the Court of law since the same can be filed as the evidence either to initiate or defend the proceedings, irrespective of the nature of the litigation.
Now-a-days, there has been lot of confusion among the public as to whether the documents have to be notarized and the necessity of the same. The person authorized for notarizing such documents is referred as Notary. The functions and importance of the notary and the documents notarized are discussed in detail below:

Notary
            Notary is a Public Officer appointed by the Central Government or State Government under Notaries Act 1952. Central Government may appoint a Notary for the whole or any part of India. Likewise the State Government may appoint a Notary for the entire or for any part of the State.
            Though Notary can be appointed either by the Central Government or the State Government, certain basic and specific powers have been assigned to such notary. If the documents are required to be produced in the court, then the Notary or the Oath Commissioner appointed for that specific purpose by the State Government has to notarize the same.
However, if the document pertains to the affidavit that has to be produced before any authority regarding the age or change of name, then the same has to be verified by the notary appointed by the Government for notarizing such documents.

Functions of a  Notary
A Notary is governed under the Notaries Act 1952, wherein specific functions have been assigned to them. The following are few of the functions explained to bring about awareness among the public.
1.    To verify, authenticate, certify or attest the execution of any instrument. The word instrument is defined in the Act, as every document by which any right or liability is or purports to be, created transferred, modified, limited, extended, suspended, extinguished or recorded.
       So every document is not an instrument, unless it creates right or liability. Each word verified, authenticated, certified and attested by the notary, have different meaning.
       Authenticating means, the Notary assures himself about the identity of the person who has signed the instrument, who is otherwise called as Executant as well as to the fact of execution. Certify means to testify.
       Notary is bound to make entry of notarial act of certifying the copy of the document as true copy of original. Attest means to evidence the execution of the same.
2.    To administer oath to, or take affidavit from any person.
3.  To translate and verify the translation, of any document from one language      into another.
4.   To act as commissioner, to record evidence in any civil or criminal trial if          so directed by the court or authority.
5.    To act as arbitrator, mediator, or councilor if so required.
6.    To do any other act which may b prescribed.

Notarial Act
Certain specific procedure has been envisaged under the Notaries Act pertaining to the notarial act. According to the act, the Notary has to sign on the document and also has to affix the notary seal. Apart from this, it is the duty of the Notary to mention the Registration number of the document and the volume of the Book, which is required to be maintained by the notary. The Notarial act will be completed only after the executant, executing the document or the affidavit signs in the book maintained by the notary. Thus, the presence of the executant is mandatory. After the completion of the all the mandatory requisites, the document or the affidavit notarized will be considered as authenticated documents.

Notary Seal
It is mandatory for notary to use his official seal. The Notaries Rules 1956 prescribes the form and design of the seal to be used, which has to be plain circular seal of 5 cms diameter. It shall contain the name of Notary, the jurisdictional area where he/she has been appointed to exercise his/her functions, the registration number, and engraved with the words “NOTARY” and the name of the Government which appointed him.
The Notary shall use his office seal on every document. The Evidence Act also provides that the courts should take judicial notice of seal of Notary. In the absence of seal of Notary, the document has no evidentiary value.



Affidavits
            Apart from the notarized documents, affidavit notarized and attested by the notary can be filed in the court of law, both in the civil or criminal proceedings. Section 139 of Code of Civil Procedure 1908 and Section 297 of Code of Criminal Procedure expressly provides for the provision to file the affidavits in the court and such affidavits are admissible as the evidence. However, such affidavits have to be duly notarized, fulfilling all the mandatory pre-requisites provided in the act.

Proper stamp duty
            Before doing any Act of Notary, it is the duty of the Notary to ensure that the proper stamp duty is paid on such instrument. If the same is not duly stamped as required under law, then the same may be impounded Section 33(1) of the Stamps Act. Apart from the regular stamp duty, the act of Notary attracts additional stamp duty under Article 42 of Indian Stamp Act and Article 36 of Karnataka Stamp Act, which is Ten Rupees.

Notary Fees
            The Notarial Rules 1956 has prescribed the fees for each category of acts. The Rule No.10 refers to the fee to be collected by the Notary shall display rates of fees charged in conspicuous space both inside and outside chamber or office of the notary. In addition to the fees, Notary may also charge the traveling allowance by train or road at Rupees Five per kilometer.

            In the present scenario, apart from the Ration card, Income proof, Banks prefer for the production of affidavit/Deed of Undertaking/Indemnity Bonds before advancing loans. Infact, Corporation office is also insisting for the production of either of the documents mentioned above before sanctioning the plan. Hence, it is necessary to enlighten the public about the importance and procedure involved for notarizing the affidavits or the documents.

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