The Seal of Authenticity: Evidentiary Value of Notarised Documents

As commercial transactions become increasingly complex and international in character, adherence to statutory procedures and ethical standards by notaries remains essential for preserving the integrity and reliability of documentary evidence in the legal system.

The institution of notaries occupies an important place in the administration of justice and commercial transactions. In India, the Notaries Act, 1952 along with the Notaries Rules, 1956 empowers the Central and State Governments to appoint notaries and prescribe their duties, powers and professional responsibilities.

Introduction

The word “notary public” is defined by Wharton in his Law Lexicon as an officer who takes notes of anything which may concern the public, he attests deeds or writings to make them authentic in another country, but is principally employed in mercantile affairs, to make protests of bills of exchange, etc.

A notary acts as an impartial witness to the execution of documents and certifies that the parties have signed documents voluntarily and with due knowledge of the contents.

Importance

While verifying the authenticity of documents, notaries are required to identify signatories to a document to weed out imposters and to ensure that the parties enter into an agreement willingly and knowingly. Briefly speaking a notarised document helps to verify or rather identify the person signing the document. The sole purpose of notarising a document is to prevent any kind of document fraud and/or identify theft by preventing someone from presenting a forged document.

Documents commonly needing notarisation include affidavits, power of attorney, declarations, indemnity bonds, name change, bank undertakings, visa papers, no-objection certificates, etc.

Notarisation and registration: Distinct concepts

However, notarisation should not be confused with registration. While notarisation authenticates the execution of a document, registration under the Registration Act, 1908 creates a public record of certain transactions and is mandatory for specified classes of documents. A common misconception is that notarisation confers legal validity equivalent to registration. The law clearly distinguishes between the two. Documents involving transfer of rights in immovable property often require compulsory registration and cannot derive legal efficacy merely from notarisation.

The Supreme Court in Thiruvengadam Pillai v. Navaneethammal¹ categorically held that a notarised agreement by itself does not create or transfer title in immovable property. The court emphasised that where registration is compulsory under law, notarisation cannot substitute the statutory requirement of registration. Thus, while notarisation may establish the fact of execution, it does not confer proprietary rights or validate transactions that require registration.

Notarisation does not prove the truth or genuineness of the contents of a document. It only creates a limited presumption regarding execution, signature and attestation. The document must still be proved according to the provisions of the Sakshya Adhiniyam, 2023.

Functions of notaries under Section 8, Notaries Act, 1952

Section 8, Notaries Act, 1952 enumerates the functions and powers of notaries. These include verifying, authenticating, certifying, or attesting the execution of instruments; administering oaths and taking affidavits; presenting and protesting negotiable instruments; preparing mercantile and commercial documents; authenticating instruments intended for use outside India; translating and certifying translations of documents; and acting as Commissioners for recording evidence when authorised by a court or competent authority.

The statute further permits notaries to act as arbitrators, mediators, or conciliators where required. Importantly, Section 8 makes it clear that no act shall be deemed a notarial act unless it is performed under the signature and official seal of the notary. The official seal therefore constitutes an essential component of a valid notarial act.

Recognition of foreign notarial acts

In an era of increasing international commerce and cross-border transactions, recognition of foreign notarial acts assumes considerable significance. Section 14, Notaries Act, 1952 provides for reciprocity in the recognition of notarial acts. Where the Central Government is satisfied that notarial acts performed in India are recognised in a foreign country, it may, by notification, declare that notarial acts lawfully performed in that foreign jurisdiction shall be recognised within India.

The practical importance of this provision was demonstrated in K.K. Ray (P) Ltd., In re², where the Calcutta High Court accepted an affidavit sworn before a notary public in the United States in connection with a winding-up proceeding. The decision underscored the principle that duly authenticated foreign notarial acts may be recognised by Indian Courts, particularly where reciprocity exists.

Evidentiary value of notarised documents

A notarised document does not conclusively prove the truth of its contents. It merely creates a presumption regarding the execution and authentication of the document. The substantive facts contained in the document must still be proved in accordance with the provisions of the Sakshya Adhiniyam, 2023.

The evidentiary significance of notarisation is particularly evident in relation to powers of attorney. Section 84, Sakshya Adhiniyam, 2023 provides that the court shall presume that every document purporting to be a power of attorney and appearing to have been executed before and authenticated by a notary public or other specified authority has been duly executed and authenticated. This statutory presumption facilitates the admission of such documents in evidence and relieves the party relying on them from proving execution in the ordinary manner unless the presumption is rebutted.

Judicial interpretation of authentication by a notary

The Supreme Court in Jugraj Singh v. Jaswant Singh³ elaborated upon the presumption arising from notarisation. The court held that where a power of attorney bears the endorsement of a notary public showing that it was subscribed and sworn before him, a presumption arises that the notary properly discharged his official duties, including verification of the identity of the executant. The absence of a specific statement regarding identity verification in the endorsement does not diminish this presumption.

Similarly, the Allahabad High Court⁴ held that authentication by a notary involves more than mere attestation. Authentication implies that the notary has satisfied himself regarding both the identity of the executant and the fact of execution. Consequently, a duly authenticated document enjoys a statutory presumption of validity unless evidence is produced to rebut it.

Professional responsibilities and misconduct of notaries

The role of a notary carries significant public responsibility. A notary acts as a trusted public officer whose certification may influence legal rights and obligations. Consequently, strict compliance with statutory requirements is indispensable.

The Supreme Court⁵ strongly condemned the practice of notarising affidavits and documents in the physical absence of the executant. The court treated such conduct as serious professional misconduct because it defeats the very purpose of notarisation and undermines public confidence in the notarial system.

Rule 11, Notaries Rules, 1956 further mandates that every notary maintain a prescribed notarial register and make contemporaneous entries of every notarial act performed. Maintenance of the register is not a mere formality; it constitutes an essential statutory duty designed to ensure transparency, accountability, and traceability of notarial acts.

Conclusion

The institution of notarisation continues to play a vital role in India’s legal and commercial framework. A notary acts as a guardian against fraud by verifying identities, authenticating execution, and certifying legal documents. Nevertheless, notarisation has limited legal effect. It does not establish the truth of the contents of a document, nor can it replace mandatory registration requirements prescribed by law. Courts recognise notarised documents primarily as evidence of execution and authentication, subject to statutory presumptions under the Sakshya Adhiniyam, 2023.

Judicial decisions have consistently reinforced the importance of proper notarisation and the responsibilities attached to the office of a notary. As commercial transactions become increasingly complex and international in character, adherence to statutory procedures and ethical standards by notaries remains essential for preserving the integrity and reliability of documentary evidence in the legal system.