Notary

What is a Notary?

A **notary** (also called a **notary public**) is a **public officer** appointed by the central or state government under the **Notaries Act, 1952**, who is authorized to perform certain official acts that give legal authenticity and validity to documents and transactions. A notary acts as an impartial witness to the signing of documents, administers oaths, and certifies the authenticity of copies and signatures.

In simple terms, a notary is a legally authorized person who puts their official seal and signature on documents to confirm that the documents are genuine, that the persons signing them are who they claim to be, and that they signed voluntarily.

Legal Framework in India

Notaries Act, 1952

The **Notaries Act, 1952** is the primary legislation governing the appointment, functions, and regulation of notaries in India.

Key provisions:

- **Section 2(c):** Defines a "notary" as a person appointed as such under the Act.

- **Section 3:** The central government may appoint notaries for the whole or any part of India. State governments may appoint notaries for the whole or any part of the respective state.

- **Section 4:** Sets out the qualifications for appointment — the person must be a legal practitioner (advocate) who has been practicing for at least ten years.

- **Section 8:** Enumerates the **functions of a notary** (detailed below).

- **Section 10:** Requires every notary to maintain a register of notarial acts in the prescribed form.

- **Section 14:** Provides for the removal of a notary for misconduct, incompetence, or incapacity.

Notaries Rules, 1956

The **Notaries Rules, 1956** supplement the Act and prescribe the form of the register, the fees chargeable, the seal to be used, and other procedural requirements.

Functions of a Notary

Under **Section 8** of the Notaries Act, 1952, a notary is authorized to perform the following functions:

1. Administer Oaths and Affirmations

A notary can administer oaths and affirmations to persons making affidavits, declarations, and other sworn statements. This function is critical as affidavits must be sworn before an authorized officer to be legally valid.

2. Attest and Authenticate Documents

A notary authenticates documents by verifying the identity of the signatories, witnessing the execution (signing) of the document, and affixing their notarial seal and signature. This provides a layer of legal assurance about the genuineness of the document.

3. Verify and Certify Copies

A notary can certify that a copy of a document is a **true copy of the original**. Notarized copies are accepted by many government offices, courts, and foreign authorities.

4. Note and Protest Negotiable Instruments

Under the **Negotiable Instruments Act, 1881**, a notary can note and protest dishonored bills of exchange and promissory notes. A notarial protest is prima facie evidence of the facts stated therein (Sections 100-104, Negotiable Instruments Act).

5. Prepare and Execute Notarial Acts

A notary can prepare instruments of protest, draw up ship protests, note maritime protests, and prepare other notarial instruments.

6. Translate and Verify Translations

A notary can verify translations of documents from one language to another and certify the accuracy of the translation.

7. Act as Commissioner for Taking Evidence

A notary can act as a commissioner to take evidence on commission as directed by a court.

8. Other Functions

Any other function that may be prescribed by the central government or state government from time to time.

When Documents Need Notarization

Not every document requires notarization, but certain documents commonly need to be notarized:

- **Affidavits** — sworn statements used in court proceedings, government applications, and various legal processes.

- **Power of attorney** — documents authorizing one person to act on behalf of another.

- **Contracts and agreements** — for additional authenticity, particularly those intended for use abroad.

- **Property documents** — sale deeds, lease agreements, and partnership deeds may be notarized.

- **Documents for foreign use** — many countries require notarization of Indian documents for apostille or consular authentication.

- **Corporate documents** — board resolutions, shareholder agreements, and compliance certificates.

Notary vs. Other Officers

Notary vs. Oath Commissioner

| Feature | Notary | Oath Commissioner |

|---|---|---|

| **Appointment** | Under Notaries Act, 1952 | Under state rules or by court order |

| **Functions** | Wide — oaths, attestation, protest, certification | Limited — primarily administering oaths |

| **Jurisdiction** | As specified in appointment (can be national or state) | Usually limited to a specific area or court |

| **Seal** | Notarial seal prescribed by rules | Official seal of the court/office |

| **Qualifications** | Advocate with 10+ years of practice | Varies — may not require legal practice |

Notary vs. Sub-Registrar

A sub-registrar registers documents under the **Registration Act, 1908**. Notarization is different from registration — a notary authenticates documents but does not register them. For property transactions, registration with the sub-registrar is mandatory; notarization alone is not sufficient.

When Does This Term Matter?

Court Proceedings

**Affidavits** filed in court proceedings must be sworn before a person authorized to administer oaths — a notary, magistrate, or oath commissioner. Without proper notarization or attestation, an affidavit may be rejected by the court.

International Transactions

Documents intended for use in **foreign countries** almost always require notarization as the first step in the authentication chain. After notarization, the document may need apostille (for Hague Convention countries) or consular legalization (for non-Hague countries). The **Ministry of External Affairs** provides apostille services on notarized documents.

Real Estate Transactions

While property sale deeds must be registered with the sub-registrar, ancillary documents — powers of attorney for property transactions, affidavits of ownership, declarations, and indemnity bonds — are often notarized.

Business and Corporate Matters

Corporate governance documents, board resolutions for bank transactions, shareholder agreements, and compliance certificates are frequently notarized for authenticity. Banks and financial institutions often require notarized copies of identity and address documents.

Immigration and Visa

Visa applications, educational credential verifications, and immigration documentation typically require notarized copies of passports, educational certificates, birth certificates, and financial documents.

Practical Significance

- **Notarization creates a presumption of authenticity.** Under **Section 57 of the Indian Evidence Act, 1872** (now **Bharatiya Sakshya Adhiniyam, 2023**), courts take judicial notice of notarial acts. A notarized document carries an inherent presumption of genuineness.

- **Notarization does not replace registration.** For documents that are compulsorily registrable (such as property sale deeds, leases over 12 months), notarization is not a substitute for registration under the Registration Act, 1908.

- **Verify the notary's credentials.** Ensure that the person notarizing your document is a duly appointed notary with a valid appointment. You can verify this with the relevant state bar council or government authority.

- **Maintain records.** A notary is required to maintain a register of all notarial acts performed. If the authenticity of a notarized document is later questioned, the notary's register serves as evidence.

- **Fees are regulated.** Notary fees are prescribed by the Notaries Rules, 1956, and cannot exceed the specified limits. In practice, notaries charge modest fees for their services.

Frequently Asked Questions

Is notarization the same as registration of a document?

No. Notarization involves a notary authenticating a document by witnessing its execution, verifying the identity of signatories, and affixing their seal. Registration involves filing a document with the Sub-Registrar's office under the Registration Act, 1908, and is mandatory for certain documents like property sale deeds. A document may need both notarization and registration, but one does not replace the other.

Can any advocate act as a notary?

No. A notary must be specifically appointed by the central or state government under the Notaries Act, 1952. The appointment requires the advocate to have at least ten years of legal practice. Not all advocates are notaries, and only those who have been formally appointed and have a valid appointment order can perform notarial functions.

What is the difference between a notarized document and a sworn affidavit?

An affidavit is a specific type of sworn statement made under oath or affirmation. A notarized document is any document that has been authenticated by a notary — this may or may not involve an oath. While affidavits must be sworn before a notary (or other authorized officer), other documents like agreements, copies, and translations can be notarized without an oath.

Are notarized documents valid in foreign countries?

Notarized documents are the first step in the process of making Indian documents acceptable abroad. For use in countries that are members of the **Hague Apostille Convention** (India acceded in 2023), a notarized document can be apostilled by the Ministry of External Affairs, after which it is recognized by all member countries. For non-member countries, the notarized document needs to be legalized by the embassy or consulate of the destination country.