The Notaries Act, 1952

What it does

The Notaries Act, 1952 (Act No. 53 of 1952) provides for the appointment and regulation of notaries. The Central Government appoints notaries for the whole of India or for a part, and a State Government appoints them for its State. The Act sets who is qualified, what they are to be paid for their services, and when they may be removed from practice.

Section 8 sets out the functions of a notary. A notary may verify, authenticate, certify or attest the execution of an instrument, administer an oath to or take an affidavit from a person, and note and protest the dishonour of a negotiable instrument, among other functions. A notary acts under a seal and signs and dates what they certify. The Act is concerned with the acts of the notary as an officer. It does not decide whether the instrument itself is valid, which depends on the law that governs the instrument.

Who it binds

Persons appointed as notaries and persons who deal with them, in the sense that a notarial act is made by an officer who answers to the Act. Only a person appointed under the Act acts as a notary in the sense the Act describes. The notary is subject to the Act's provisions on professional conduct and on removal.

What has changed, and when

The Act has been in force for over seventy years and is supplemented by the Notaries Rules, 1956 made under it. It has been affected indirectly by changes in the laws that rely on a notarial act, such as the evidence law, which now appears in the Bharatiya Sakshya Adhiniyam, 2023. This page does not record any amendment to the sections that matter for documents signed abroad, which are sections 8, 11 and 14.

What turns on it in practice

The most common question is the use of a notary for a document that will be used in India, particularly a power of attorney signed abroad by a person who lives there. Two routes are usually considered. One is signature before an Indian consular officer. The other is signature before a notary of the country where the person lives. The Act is the reason the second route is less clear than it seems. Section 11 reads a reference to a notary public in any other law as a reference to a notary entitled to practise under this Act, and section 14 allows the Central Government to declare by notification that the notarial acts of notaries in a named country are to be recognised. Whether a given foreign notary falls within the evidence law's presumption for a power of attorney depends on those two provisions together with the section of the evidence law that creates the presumption.

An apostille helps with the genuineness of a foreign notary's seal, and India is a party to the convention that provides for it. But it answers a different question. The section of the evidence law on the presumption for a power of attorney does not mention an apostille, so an apostille on its own does not settle whether the document gets the presumption.

For a person abroad who needs to sell a flat in Bengaluru, the choice of route affects the timetable and the risk that the document will be refused at the sub- registrar's office or questioned in a later dispute. The site's note on a power of attorney signed abroad for a sale sets out the route, the time within which the document must be stamped after it arrives, and the limit of what the power can do. This is advice that sits in the real estate work of this practice, where a non-resident owner is selling property in India.