The public at large have a conception that all the documents
concerning transfer of immovable property need to be compulsorily registered.
But it is not so. Section 17 of the Registration Act specifies the documents of
which registration is compulsory and Section 18 of the Act mentions the
documents of which registration is optional.
Notary is a Public Officer appointed by the Central
Government or the State Governments under the Notaries Act, 1952. Rule 7 of the
Notaries Rules confers power on the competent authority to make recommendation
to the appropriate Government after holding necessary enquiry for its consideration
regarding appointment of any individual as notary. The Central Government may
appoint a Notary for the whole or any part of India.
Rule 3 of the Notaries Rules, 1956, stipulates the
qualifications for appointment as a Notary. No person can practice as a notary
or do any Notarial Act unless he holds a certificate of practice in force. Such
certificate is issued by the competent authority under sec.5 of the Act which
is valid for five years at a time. A Notary cannot function as such if he
ceases to be a Legal Practitioner.
The functions of
Notaries are detailed in sec.8 (1) of the Notaries Act. The functions of a
Notary would inter alia include:
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. Therefore,
every document is not an instrument unless it creates right or liability. The
words verified, authenticated, certified and attested have different meanings.
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 any Court or Authority.
5] To act as Arbitrator, Mediator or Conciliator, if so required.
6] To do any other act/acts which may be prescribed.
Before making a notarial endorsement on any document, it is
the duty of the Notary to get confirmed that the instrument is duly stamped,
and if it is not, he can impound it under sec.33 (1) of the Stamp Act and after
the Notary has made the notarial endorsement, the document is further liable to
duty under Article 42 of the Stamp Act.
The Notary is duty bound to take care about identification of
the Executants of the original document unless the Executants are known to the
Notary personally. The Notary must insist on written identification of the
Executants by an Advocate and take signature. Authentication of Notary is
treated as equivalent to affidavit of identity of the Executants.
Rule l2 of the Notaries Rules prescribes the type and design
of the seal of Notary. According to this, every Notary shall use a plain
circular seal of a diameter of 5 cm bearing his name, the name of the areas
within which he has been appointed to exercise his functions, the registration
number and the circumscription NOTARY and the name of the Government which
appointed him. Certain specific procedure has been envisaged under the Notaries
Act pertaining to the Notarial Act. According to this, the Notary has to sign
the document and also has to affix the notary seal. The Notary also has to
mention the registration number of the document and volume of the book which is
required to be maintained by him. The notarized document shall invariably bear
the signature of the Notary and his Official seal.
Section 139 of CPC and Section 297 of Cr.P.C. expressly
provide for the provision to file affidavits in Courts duly notarized. The
documents bearing attestation of Notary are admissible in evidence. It is not
necessary to produce Notary as witness. His attestation itself shows that he
had compared photo copy with the original document. Attestation of photograph,
character certificate, and true copies of testimonial certificate would not
fall under the notarial functions of a public Notary. A Notary cannot delegate
his powers even to another notary since a delegated authority cannot be
redelegated.
Rule 10 of the Notaries Rules, 1956, prescribe the rates
chargeable by a Notary for doing any Notarial Act. In addition to the rates so
prescribed by the rules, a Notary shall be eligible for travelling allowance by
road or by rail at the rate of Rupees five per kilometer. Further, the rule
requires the notary to display the rate of fees charged by him in a conspicuous
place inside as well as outside his chamber or office.
Under rule 13, the appropriate Government may either Suo motu
or on a complaint received in the prescribed form conduct an inquiry into the
misconduct of a Notary and upon finding guilty of misconduct may cancel the
certificate of practice and perpetually debar the notary from practice, or
suspend him from practice for a specified period or let him off with a warning,
according to the nature and gravity of the misconduct.
Under the following circumstances, the competent Government
may, by an order, remove the name of a Notary in the Register of Notaries
maintained under section 4 of the Act depriving him of practice as such:
a] If the Notary makes a request to the
concerned Government to that effect; or
b] If the Notary has not paid any prescribed
fee required to be paid by him; or
c] If he is an un discharged insolvent;
or
d] If he has been found to be guilty of
some professional or other misconduct which in the opinion of the Government
renders him unfit to practice as a Notary; or
e] If he is convicted by any Court for
an offence involving moral turpitude; or
f] If he does not get his certificate of
practice renewed.
The removal of the name of any Notary from the Register of
Notaries or his suspension from practice shall be notified in the official
gazette and shall also be communicated to the Notary in writing.
Having some broad knowledge on the functions of Notary would
help the public immensely since they may have to use the services of a Notary
on some occasion or the other.
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