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FUNCTIONS OF A NOTARY PUBLIC IN INDIA
by
V Subramanian
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Who is a Notary? Notary is person appointed by the Central Government or state government under Notaries Act, 1952. The Central Government may appoint a notary for the whole or any part of the country. Likewise, the state government may appoint a notary for the entire or for any part of the state. A Notary is a public officer.
What are the functions of a notary? The chief functions of a notary public are governed by the Notaries Act, 1952. We shall confine ourselves to the major functions that are more relevant to 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 confers a right or records a liability. Each word namely verify, authenticate, certify and attest has a different meaning. ‘Verify’ means checking with the facts and proof/evidence produced. ‘Authenticate’ means, the notary has assured himself of the identity of the person who has signed the instrument as well as to the fact of execution. ‘Certify’ means to confirm through a formal statement that the instrument executed possesses certain qualifications or meeting the accepted minimum standards relevant to the contents of the same. Notary is bound to make entry of the notarial act of certifying the copy of the document as a true copy of its original. ‘Attest’ means to affirm to be correct, true or genuine. 2. To administer oath to or take an 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 conciliator if so required. To do any other act which may be prescribed
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When is a notarial act completed? Every notarial act has to be done under his signature and notary seal with registered number and date.
It is mandatory for notary to use his official seal. The Notaries Rules 1956, has prescribed the form and design of the seal to be used. It shall be plain circular seal of 5 cms diameter. It shall contain the name of notary, the jurisdictional area where he has been appointed to exercise his functions, the registration number, and circumscription “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 the notary. In the absence of the seal of the notary, the document has no evidentiary value.
The Section 139 of Code of Civil Procedure 1908 has an express provision, in this regard, where any affidavit verified by notary is admissible as evidence. Likewise, Section 297 of Code of Criminal Procedure provides for admission of affidavits verified by the notary. Does notary public have to ensure that proper stamp duty is paid on instrument? Before doing any act of notary, it is the duty of the notary to ensure that the proper stamp duty is paid, if not he may impound it under Section 33(1) of the Stamp Act. Apart from the regular stamp duty, the act of notary attracts additional stamp duty under Article 42 of Indian Stamp Act, 1899 and the relevant provisions of the State Act concerned.
Does notary charge any fee for doing notarial acts? The Notarial Rules 1956, has prescribed the fee for each category of act. The rule No.10 refers to the fee to be collected by the notary. He should display rates of fee charged in conspicuous space both inside and outside his chamber or office. In addition to the fee, notary may also charge the travelling allowance by train or road at Rs.5 per kilo metre.
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