Notary-Attested Documents: Presumption, Rebuttable

Jojy George Koduvath

Introduction

Notaries derive authority to do various notarial-acts from Sec. 8 of the Notaries Act, 1952.

This section lays down the functions of notaries. It includes—“verify, authenticate, certify or attest the execution of any instrument”.[1]

Presumption of regularity under Sec. 114 of Evidence Act

Presumption of regularity is attached to ‘official acts’, under Sec. 114 of Evidence Act. By virtue of Sec. 8 of the Notaries Act, attestation of the notary public is also an ‘official act’. Therefore, it is held in Jugraj Singh v. Jaswant Singh [AIR 1971 SC 761: 1970 SCC (2) 386] by our Apex Court (Hidayatullah, CJ, AN Ray, ID Dua, JJ) as under:

“There is a presumption of regularity of official acts and we are satisfied that he (notary) must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. This makes the second power of attorney valid and effective both under s. 85 of the Indian Evidence Act and s. 33 of the Indian Registration Act.”

Copy Attestation

In Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah, AIR 1992 Bom 149, the Bombay High Court has pointed out that Rule 10(1) of the Notaries Rules, 1956 prescribed fees for certifying copies of documents as true copies of the original at the rate set forth therein; and that the ‘copy attestation’ of a document made by a notary public was also an official act. Here also, the Bombay High Court, cautioned that the notary must have properly discharged his duty by making due entry in the notary register etc. It is observed in this decision as under:

“Notarised copies of power of attorney and other documents are filed with Banks, Courts and other public institutions. If documents are marked as true copy by the notary without taking due care and even making any entry in the notary register and without taking signature of an advocate identifying the executant or without taking other reasonable precaution, it cannot be said that the notary is discharging his duty in accordance with law as expected of him.”

Presumption as to Powers-of-Attorney

Sections 85 Sec. 114 of the Indian Evidence Act, 1872 are germane. Under Sec. 85 there is a presumption as to the authority of the Notary Public. That is, if a document contains the seal and signature of a notary public (including foreign countries like USA, UK, Canada) it is presumed to be genuine; and therefore no further evidence need be produced before the court to prove the seal and signature.

Section 85 of the Indian Evidence Act, 1872 reads as under:

85. Presumption as to powers-of-attorney.—The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.

See Blog: (CLICK): No Adjudication Needed If Power of Attorney is Sufficiently Stamped

The Presumption is Presumption as to Genuineness

In Rajeshwarhwa vs Sushma Govil: AIR 1989 Delhi 144, it is held that the presumption is with respect to attestation by a ‘Competent Notary’ . It reads as under:

"When a seal of the Notary is put on the document, Sec. 57 of the Evidence Act (courts take judicial notice)comes into play and a presumption can be raised regarding the genuineness of the seal of the said Notary, meaning thereby that the said document is presumed to have been attested by a competent Notary of that country."

Further, Sec. 85 of the Indian Evidence Act provides that the Court shall presume that a power of attorney executed before a Notary Public was duly ‘executed’. The presumption drawn is the presumption as to genuineness of (i) its execution, including (ii) identification of its executant. But, it is a rebuttable presumption. In Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah: AIR 1992 Bom 149, it was observed as under:

“Law takes judicial notice of seal of a notary. In ordinary course, an initial presumption may be made about genuineness of the notarised copy of the document. The underlying idea behind such presumption is that the notary is normally a responsible member of the legal profession and he is expected to take due care to satisfy himself about the identity of the party appearing before him.”

Read Blog: Secondary Evidence of Documents & Objections to Admissibility – How & When?

Course to be adopted if the party is not known to the notary

When the party appearing before the notary is not known to the notary, the aforesaid decision Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah: AIR 1992 Bom 149, points out the remedy as under:

“If the party appearing before the notary is not known to the notary, the notary must get the party identified by an Advocate known to him and take signature of both of them in token thereof.”

The presumption is presumption as to ‘Authentication’ also

S. 85 of the Indian Evidence Act provides that the Court shall presume that a power of attorney was duly ‘authenticated’ by the Notary Public, also. It is pointed out in Kamla Rani v. M/S. Texmaco: AIR 2007 Delhi 147, that the expression ‘shall presume’ in Section 85 shows that the section is mandatory and that it is well settled that ‘authentication’ would mean more than mere execution.

As stated above, presumption of regularity of official acts can also be invoked and the court can come to a conclusion that the notary public was satisfied himself that the person purported himself had been executed it.

But, the certificate or endorsement of the notary public must apparently show that the notary public had satisfied himself, expressly or impliedly, about the identity of the person executed the document, though there was no prescribed form of authentication.[2] In Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah: AIR 1992 Bom 149, the Bombay High Court cautioned that the notary must have properly discharged his duty by making due entry in the notary register and observing other reasonable precautions.

Ratification of Earlier Act

In Jugraj Singh v. Jaswant Singh [AIR 1971 SC 761 1970 SCC (2) 386] it was found that the recital in a second power of attorney correcting the mistake in the first one, relates back to the original act – done after first power of attorney and before the second one – on the basis of the first power of attorney.

Unstamped documents

Sec. 35 of the Indian Stamp Act, 1899 directs that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped (See: V. Madhusudhan Rao v. S. Nirmala Bai, AIR 2019 AP 93).

Attestation of Will by Notary

Sec. 8 (1) of the Notaries Act allows a notary to “verify, authenticate, certify or attest the execution of any instrument”.

Besides, authorising a Notary, inter alia, to ‘attest’ under Sec. 8 of the Notaries Act, Rule 11(8) of Notary Rules provides for the ‘preparation of a Will’, too. Rule 11(8) reads as under:

“(8) The notary may:
(1) draw, attest or certify documents under his official seal including conveyance of properties;
(2) note and certify the general transactions relating to negotiable instruments;
(3) prepare a Will or other testamentary documents; and
(4) prepare and take affidavits for various purposes for his notarial acts.”

Therefore, if the notary public is merely ‘verifying, authenticating or certifying” the Will (other than ‘attesting’ the execution of the will), there must be two other proper “attesting witnesses” to the Will, as stipulated under Sec. 63 of the Succession Act. In other words, if the notary is an ‘attester’ of the Will, it must be clearly specified.

Section 63 (c) of the Indian Succession Act, 1925 reads as under:

“The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the …..; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Conclusion: No Presumption – in Doubtful Documents

Presumption attached to the ‘official acts’ is rebuttable, under Sec. 144 of the Evidence Act.

In Thiyagarajan v. Muthusamy Gounder, 2013-3 Mad LJ 159, one of the attesting witnesses of the disputed Will was a Notary Public. There were doubtful circumstances as to the execution of the Will. It was pointed out that ‘in doubtful cases, there is no presumption in favour of the Will (In dubiis non praesumitur pro testamento)’ though it is otherwise for the documents other than Will.

The Madras High Court, in this judgment, remanded the case with the following observation – “One more opportunity could be given to the plaintiff to dislodge the presumption attached to Ex.B2-the notary attested Will”.

[1] Section 8 of the Notaries Act, 1952 reads as under:

8. Functions of notaries: (1) A notary may do all or any of the following acts by virtue of his office; namely:
(a) verify, authenticate, certify or attest the execution of any instrument;
(b) present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;
(c) 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 (XXVI of 1881), or serve notice of such note or protest;
(d) note and draw up ship’s protest, boat’s protest or protest relating to demurrage and other commercial matters;
(e) administer oath to, or take affidavit from, any person;
(f) prepare bottomry and respondentia bonds, charter parties and other mercantile documents;
(g) 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 entitled to operate;
(h) translate, and verify the translation of, any document from, one language into another; 1[(ha) act as a Commissioner to record evidence in any civil or criminal trial if so directed by any court or authority;
(hb) act as an arbitrator, mediator or conciliator, if so required;]
(i) any other act which may be prescribed.
(2) No act specified in sub-section (1) shall be deemed to be a notarial act except when it is done by a notary under his signature and official seal.

[2] Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah: AIR 1992 Bom 149.

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Notary-Attested Documents: Presumption, Rebuttable

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