notarizing

In this article, Sahali Manna discusses the benefits of notarizing a document.

Introduction

Notarization is also referred as “notarial acts”. It includes a three-part process by a notary public that includes vetting, certifying and record keeping. It is basically the official process to prevent fraud and assure the parties in the transaction that the document notarized, is genuine. Mostly, documents required in banking transactions or court documents are mandatory to be notarized.

In India, a notary is done by a notary public who acts as an impartial witness in discharging fraud deterrent activities related to legal documents. Notaries Act, 1952 governs the duties of a notary public. Certifying, attesting or authenticating any instrument, carrying out translations and verifying such translation of legal documents from one language to another. He can administer oaths and witness swearing by deponents for affidavits. A notary may also function as an arbitrator.

Who can notarize?

A practising lawyer having experience of at least 10 years and 7 years for SC, ST category candidates and women candidates may become a notary public in India. A person who has served as a member of judicial services or has held office under state/central government with a position requiring special knowledge of law is also eligible to become a notary public in India.

Importance of notarization

A notarized document helps to verify that you are the one signing the document. So, the sole purpose of notarizing a document is to prevent any kind of document fraud and or identity theft by preventing someone from presenting a forged document. A notarized letter which is certified by a notary public also helps in protecting the rights of the citizens who might otherwise be exploited and also a lot of court proceedings may be avoided if the document of a transaction is certified by a notary.

Different types of notarial acts

Acknowledgements – Acknowledgements are mainly required for document of valuable assets. Example: deeds, mortgages.

An acknowledgement ensures that the signer of the document has voluntarily signed the document and for this purpose, he must appear before the court personally at the time of notarization.

Jurats – By appearing personally before the court a jurat has to be signed by the signer. By signing a jurat the signer confirms the contents of the documents to be true.

Oath and affirmation – The verbal oath or affirmation is also to compel a client to truthfulness. Affirmation and oaths are done orally.

Copy certification – Diploma, driving license, medical records, bills of sales may require copy certification. A copy certification confirms that a copy of an original document is true.

Benefits of notarizing a document

  • It is not mandatory to notarize all legal document but in some cases notarization of documents are mandatory. Because if you do not notarize the documents which need to be notarized then its legal validity will be questionable which may lead to rejection of such documents in court.
  • Rule 12 of the Notary Rules, 1956 prescribes that a notary seal should be of 5 cm, which is used for the verification of documents. The seal actually validates the fact and the identities of the people signing the documents are authentic.
  • It also helps to prevent forgery and avoid frauds in legal documents.
  • The presence of a notary seal in any document confirm for the court that the signatures in that document were placed by genuine person and it is not fabricated.

Registering a sale agreement of an immovable property

Registration of an immovable property is of utmost importance for the buyer of the property. Unless he registers the property in his name, he won’t be considered the legal owner of the of the property and the previous owner will be considered the rightful owner.

According to the Transfer of Property Act, 1882 and the Registration Act, 1908, lease of immovable property from year to year basis or a term exceeding twelve months requires a mandatory registration from the office of the sub-registrar.

If a lease agreement which is not registered by the parties, but was required to be registered will not be considered as a valid evidence of any agreed terms and conditions affecting the leased property.

It is important on the part of the purchaser or the transferee to pay the stamp duty and registration charges. Stamp duty is a kind of tax which is collected by the government under its jurisdiction for a transaction of a property.

Stamp duty is a kind of tax which is collected by the government under its jurisdiction for a transaction of property. Payment of stamp duty is important to register the new property in your name.

Sec 17 of the Indian Registration Act, 1908 mandates the documents to be registered regarding transfer, sale, lease of a property. Two witnesses and payment of the appropriate registration fees are required to be paid.

Importance of registering a sale agreement – Judicial Interpretation

Registration of a sale agreement is also backed by several various acts such as the Indian Contract Act, Specific Relief Act and various apartments act enforced by many states. Even U.P Apartment Act, 2010 also mandates all sale agreements to be necessarily registered in U.P. So it is a wise step to get a sale agreement registered.

In the case of TG Ashok Kumar vs Govindammal, it was held that “If all agreements of sale are compulsorily registered that will go a long way to discourage generation and circulation of black money in real estate matters, as also undervaluation of documents for purposes of stamp duty. It will also discourage the growth of land mafias and musclemen who dominate the real estate scene in various parts of the country.”[1]

It has been held by so many High courts and the Supreme court that a sale agreement if not registered will not be recognized in a court of law.

In the case of Vijay Kumar vs Devesh Behri Saxena in 2007, the Allahabad high court held that for immovable property the contract of sale in UP has to be registered, an unregistered agreement of sale for an immovable property will not be considered as evidence.

Summing up

On discussing throughout the article what is an act of notarization and what is registration and why is it important to execute a sale deed we can say that a notarization is a mere formality that should be followed while executing a lease agreement. Notarized documents assure legal authenticity of a person’s identity and signature whereas, without registering a sale agreement of a property a person cannot claim ownership of that particular property. Hence, notarization cannot be a substitute of registering an agreement. Both notarization and registration has importance in executing an agreement.

REFERENCES:

Web sources

  • nationalnotary.org
  • http://www.hindustantimes.com
  • http://www.indiainfoline.com
  • http://www.mondaq.com

Cases referred

  1. Vijay Kumar vs Devesh Behri Saxena
  2. TG Ashok Kumar vs Govindammal

[1] Civil Appeal No. 10325 of 2010

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