The Notary Public is an institution of very ancient origin. It is an institution of great utility and the Notary Public is an officer recognised by the whole commercial world and a certificate by a Notary Public, competent to administer an oath to persons making declarations or affidavits, is sufficient evidence of the execution of the instrument to which it refers.
Section 85 of Indian Evidence act, 1872 also provide that the Court shall presume that every document purporting to be Power of Attorney, which has been duly executed before and authenticated by Notary Public can be taken to have been so executed and authenticated.
It is common knowledge that the office of a Notary Public had its origin in the civil institutions of ancient Rome. Subsequently, the Notaries found their way in England and were regarded as originally officers of the civil and the canon law, and acted by imperial and Papal authority.
Notary in England
The records of Edward the Confessor mention deeds attested by a Notary. In a deed by King John dated A.D. 1199 it was supposed to be written and attested by one Master, Philip, a notary, who was described as a Notary of the Pope. Many of the Notaries at that time were created by the counts palatine, who not only made the appointments themselves but also delegated their powers to English churchmen.
Matters of a commercial nature gradually came to dominate the work of the Notary Public, and there grew up a separation from their ecclesiastical origin.
It is also common knowledge that the functions of an English Notary are not defined by any statutory provision or rule. Generally speaking, no person in England is entitled to practice as a Notary Public or do any notarial acts unless he has been duly sworn, admitted and enrolled in the Court of Faculties belonging to the Arch Bishop of Canterbury.
A part of Indian legal history is that it was these persons before the year 1952 who practiced as Notary Public in India. In the year 1952 the Indian Notaries Act came into operation.
Brooke’s Treatise on the Office and Practice of a Notary of England, 8th Ed. p. 19, points out:
“From a remote period English notaries have exercised the right to administer oaths and take affidavits. These affidavits are, for the most part, intended for use in the British dominions abroad and in foreign countries where notarial acts are recognized. They may also act as commissioners for oaths under commissions granted by colonial and foreign authorities”
English Courts, when required by statute or statutory rule, take judicial notice of the seal and signature of a Notary Public, for instance, under the English Commissioners for Oaths Act, 1889 or old Rules of the Supreme Court, England Order 38, Rule 6.
“…. In Brooke’s Treatise which is an authority on this subject and which I have just quoted, this point is discussed at pp. 52-53. It is said there: “Where, therefore, an affidavit affirmation, declaration, etc. is sworn or taken before any of the persons mentioned in this rule no verification of the seal or signature is necessary; but where it is sworn or taken in a country not under the dominion of His Majesty, before a foreign notary, or before a person authorised by foreign law, the authority and the signatures of the notary or other person must be verified. The verification required is a certificate annexed to the affidavit, or other document, certifying that the person before whom it was sworn or taken was duly authorised to administer oaths in the country in which it was sworn or taken, and such certificate must be signed by a British consul or vice- consul, or verified by the seal of the High Court or of a Local Court of Record of the said country.”
Rajesh Wadhwa vs Sushma Govil AIR 1989 Delhi 144
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