When court should not rely on notarized documents?
The procedure relating to notarization under the Notaries Rules, 1956 framed under the Notaries Act, 1952 has not been followed. Under Rule 11(2), the notary is required to maintain a notarial register in prescribed form No. XV. The form shows 11 columns, including the column of the Serial number, Date, Name of the Notarial act, Name of the executant, Contents of documents, Notarial fee, Signatures of the executant and the Notary. The purpose of this rule is to relate each notarized document to the serial number in the notarial register required to be maintained by each notary in the prescribed form. Hence the serial number of the entry must be put on the document to collate the entry with the document. In case of dispute the factum of notarization would have to be separately proved by the applicant since, unlike registration, there is no presumption of execution of a notarized document. It is seen that in this case the notary has not shown the serial number and the register number in which the entry is made. It would be for the applicant to prove the notarization in view of the dispute. The applicant has not got produced the relevant notarial register of the notary, kept in the normal course of his conduct as such notary, to prove the execution of the document before him. The document being otherwise unregistered and inadmissible in evidence is, therefore, not even prima facie shown to be notarized.
6. In the case of Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah and Anr. MANU/MH/0030/1992 : AIR1992Bom149 , this Court considered, inter alia, the essence of notarization of documents by persons identified before notary and the prescribed rules, more specially Rule 11 required to be followed for every notarial act. That was a case of reliance upon a copy of a document certified as true copy by the notary. That notarial act remained unregistered. The mere fact that the document was notarized was held not to lend any authenticity to the document in the absence of seeing the notarial register kept by the notary in the course of his conduct as a notary as per Rule 11 of the Notaries Rules. Evidence was led in that case. The notary was summoned. The relevant notarial register was produced. No entry was found in the notarial register relating to the transaction claimed to have taken place under the copy document notarized as true copy. The notary deposed that the executant was not before him. He had not made any entry in the notarial register as, according to him, that was not required. He was only required to verify the document, compare the document and endorse it as true copy if it was the identical copy of the original. It was observed thus:
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. 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 contents of Rule 11, its purpose and object as well as the consequences of non-compliance of the rules have also been considered in Para-11 of that judgment. Reference has been made specially to Rule 11(2) of the rules which provides that every notary shall maintain notarial register in prescribed form No. XV and the register requires entry of every notarial act in the notarial register and taking of signature of the person concerned in the register. It is observed that negligence of the notary in the discharge of his notarial functions may jeopardise the interest of third parties and public interest itself. Upon seeing that the notarial register did not disclose the notarial entry relating to the notarized document produced before the Court, it was held that no evidentiary value whatsoever could be attached to such a document.
7. It may be mentioned that that was a case of only a certification of copy of a document as a true copy. Our case goes much further. It is the case of the execution of the original document itself. The executant is required to be present before the notary. He is required to be identified before the notary. He is required to sign before the notary. The notary is required to witness such an act and register the transaction. Keeping in mind that the document relied upon by the applicant herein is not registered and hence is inadmissible in evidence, even the factum of the execution of the document is not even prima facie shown by the applicant upon proving the notarial act. It is for the applicant to make out his case. The prima facie case of proof of the execution of the document on a given date by the executant before the notary can be evidenced by the production of the true or certified copy of the relevant portion of the notarial register showing that the entry was made on the relevant date in the normal course of the conduct of the notary. The applicant has undertaken no exercise to substantiate his case of the execution of the document otherwise completely inadmissible in evidence. Since even the notarial act is not shown even a prima facie case cannot be made out.
8. In the case of J.G. Hegde v. R.D. Shukla MANU/MH/0786/2003 : AIR2004Bom55 , this Court once again considered the notarized writing which was styled as "Affidavit-cum-Indemnity Bond". The relevant notarial register got produced by the Court did not reveal the required entry. The purpose of Rule 11(2) of the Notaries Rules requiring every notarial act to be serially numbered in the register to be maintained by the notary was considered. The dual purpose served by such a practice was set out. It was observed that one was to identify every document with reference to the serial number and the other was to prevent execution of anti-dated documents by inserting an entry in between two successive entries which are serially numbered.
The documents which are notarized do not even show the serial number or the register number under which they are registered and entered. Nevertheless, the notary, if called upon by the executant to prove the notarization, would be bound to produce the relevant register of the relevant date. Only the production of such a register would show whether or not the document was indeed notarized on the date it is stated to be executed.
IN THE HIGH COURT OF BOMBAY
Notice of Motion No. of 2008 in Suit No. 1094 of 2007
Decided On: 17.12.2008
H.K. Taneja and Ors. Vs. Bipin Ganatra
Hon'ble Judges/Coram:
R.S. Dalvi, J.
Citation: (2009) 2 Mh.L.J. 855
