September 30, 2022

Who are notaries and how they function?

According to Notaries act 1952, Notaries are those legal practitioners who are appointed by the central (for whole India)/state (for particular state) government to do following functions-

  • A notary may do all or any of the following acts by virtue of his
    office, namely:—
     
    • verify, authenticate, certify or attest the execution of any instrument;
    • present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;
    • note or protest the dishonour by non-acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881, or serve notice of such note or protest;
    • note and draw up ship’s protest, boat’s protest or protest relating to demurrage and other commercial matters;
    • administer oath to, or take affidavit from, any person;
    • prepare bottomry and respondentia bonds, charter parties and other mercantile documents;
    • prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is intended to operate;
    • translate, and verify the translation of, any document from one language into another;
    • act as a Commissioner to record evidence in any civil or criminal trial if so directed by any court or authority;
    • act as an arbitrator, mediator or conciliator, if so required;
    • draw, attest or certify documents under his official seal including
      conveyance of properties;
    • note and certify the general transactions relating to negotiable
      instruments;
    • prepare a Will or other testamentary documents; and
    • prepare and take affidavits for various purposes for his notarial acts.

Every notary shall grant a receipt for the fees and charge realised by him and
maintain a register showing all the fees and charges realised.

Seal of Notary

Only that person who is authorised under notaries act to practice as a notary will do notarial acts and any other person will be barred from doing notarial functions.

Who may be appointed as a Notary?

Following persons are eligible for the appointment as a Notary-

  • a person who had been practicing at least for ten years,

if any person belongs to following categories-

  • Scheduled Caste/Scheduled Tribes and other backward classes;
  • woman;
  • person with disabilities[1]

then the minimum time period will be seven years for such person.

or

  • he had been a member of the Indian Legal Services under the Central
    Government,

or

  • he had been at least for ten years,-
    (i) a member of Judicial Service; or
    (ii) held an office under the Central Government or a State
    Government requiring special knowledge of law after enrolment as an advocate; or
    (iii) held an office in the department of Judge Advocate General or in
    the legal department of the armed forces.

Certificate of a Notary

After the appointment procedure, if a person is appointed as a notary, the government shall issue a certificate with that effect. This certificate will be required to renew after every 5 years on payment of prescribed fee.

certificate of Notary

How a notary may be removed?

The Government appointing any notary may, by order, remove from the Register maintained by it, the name of the notary if he—
(a) makes a request to that effect; or
(b) has not paid any prescribed fee required to be paid by him; or
(c) is an undischarged insolvent; or
(d) has been found, upon inquiry in the prescribed manner, to be guilty of such professional or
other misconduct as, in the opinion of the Government, renders his unfit to practise as a notary; or
(e) is convicted by any court for an offence involving moral turpitude; or
(f) does not get his certificate or practice renewed.

Penalty for falsely representing to be a notary

If a person who is not a notary, falsely represent that he is a notary, or practises as a notary or does any notarial act, shall be punishable with imprisonment for a term which may extend to one year or with fine, or with both.

Office of a notary

Each notary shall have an office within the area mentioned in the certificate issued to him and he shall exhibit it in a conspicuous place there at a board showing his name and his designation as a notary.

References

  1. Notary act, 1952
  2. Notary Rules, 1956

[1] A person with benchmark disability as defined in Clause (r) of Section 2 of the Rights of
Persons with Disabilities Act, 2016