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
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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