• Can notary who has notarized the will be also the attesting witness of the same will

My aunt did not get married and has no issue. My father is her only legal heir. After my aunt passed away in 2022, one of her domestic employee has presented a notarized will in which the employee is named as her heir. But the notary who has notarized the will has also signed as the first attesting witness. Can notary be an impartial attesting witness on the same will he has notarized, Is it legal?
Asked 6 days ago in Property Law
Religion: Hindu

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19 Answers

A Notary merely certifies that a document has been executed in his/her presence after verifying the identity of the Executant duly. The Notary shall not sig the document as a witness. Your father may challenge the purported Will at the proper court in consultation with a competent lawyer.

Swaminathan Neelakantan
Advocate, Coimbatore
2976 Answers
20 Consultations

Supreme Court has held 

 

It is to be noticed that the word “attested”, the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 8 are:(1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature (2) with a view to attest or to bear witnessto this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.”

 

2) in view of said judgment notary cannot be an attesting witness to the will 

Ajay Sethi
Advocate, Mumbai
97859 Answers
7937 Consultations

If the document requires the notarization of the witnesses’ signatures, the Notary MUST NOT also act as a witness. If the Notary signed as a witness on a document that required notarization of the witnesses’ signatures, he/she/they would be notarizing his/her/their own signature, which is a criminal violation of notary law.

It would be legally wrong if a Notary act as a notary and a witness on the same document 

T Kalaiselvan
Advocate, Vellore
88059 Answers
2377 Consultations

yes, as such there is no bar. You can challenge the WILL and notarisation etc. on several grounds.

Siddharth Srivastava
Advocate, Delhi
1490 Answers

  1. There is no bar against a notary attesting any instrument as witness, but he cannot attest any document as witness and authenticate the same as notary.
  2. Any will attested as above cannot be declared as invalid on that ground. There are other grounds on which a will can questioned.
  3. The mental and physical state of testator at the  time of execution.
  4. Whether the mental and physical health was certified by a physician who regularly treats the  
  5. Relations of testator with beneficiary.
  6. Motive of execution of will and reason for bequeathing property on beneficiary.
  7. Age, mental and physical condition of testator at the time of execution.
  8. There are many more valid ground on which a will can be invalidated.

Ravi Shinde
Advocate, Hyderabad
4594 Answers
42 Consultations

  • In accordance with legal principles a notary public cannot serve as an impartial attesting witness to a will if they have notarized the same will. A notary's role is to authenticate signatures and verify the identity of the individuals involved but by also acting as an attesting witness, the notary becomes personally involved in the will’s execution creating a conflict of interest. Legal requirements generally mandate that attesting witnesses must be independent disinterested parties who have no stake in the will's provisions to ensure that the testator's intentions are clearly expressed and free from undue influence. The involvement of a notary as both the notarizer and an attesting witness can therefore raise questions about the will’s authenticity and validity potentially rendering it contestable in court. 

Ajay Kumar Augustine
Advocate, Jodhpur
14 Answers

No attesting witness are 2 different witnesses. But notary can be examined for execution of the will

Prashant Nayak
Advocate, Mumbai
33128 Answers
215 Consultations

i dont see any problem

signing as an attesting witness and signing as a notary are in two different capacities

just because the notary is also an attesting witness would not mean that he was not an 'impartial witness'

there is no concept of 'impartial' witness

there can be an 'interested' witness in whose favour some bequest was made by the testator in his Will or who had participated in the making of the Will

in any event even when the legatee and attesting witness is the same person, that is permissible in Hindu law

in your case the person has signed in dual capacities of a witness and as a notary which does not pose any legal problem as such considering the Indian Succession Act, 1925 so far it pertains to the making of the Will

Yusuf Rampurawala
Advocate, Mumbai
7784 Answers
79 Consultations

- The notary can be a witness for the execution of the document , but cannot be an attesting witness of the Will.

- Further, as per law a Will can be written even on a simple paper , but it should be in the presence of two attesting witnesses, and which the notary cannot be. 

- However, The Notaries Act, does not explicitly prohibit a notary from being a witness, but their primary duty is attestation, not witnessing.

Mohammed Shahzad
Advocate, Delhi
14903 Answers
226 Consultations

It is absolutely illegal and amounts to grave misconduct on the  part of Advocate. Complaint  to the  Bar Council of the  State against the  Advocate, his registration will be cancelled and file suit for cancellation of sale deed as it is the  result of misconduct on the  part of purchaser, father.

Ravi Shinde
Advocate, Hyderabad
4594 Answers
42 Consultations

Kindly clarify whether any stay order was passed by court restraining  sale or creating third party rights on land 

 

if no stay order passed land can be sold but it would be subject to outcome of appeal 

Ajay Sethi
Advocate, Mumbai
97859 Answers
7937 Consultations

The act of advocate in getting registry of land of his client in his sons name is a misconduct and is voidable too. Matter should be reported to bar council and suit should be filed challenging the registry or sale of land. 

Siddharth Srivastava
Advocate, Delhi
1490 Answers

Advocate knowingly if buys subjudice land with stay by court is illegal. Advocate can’t charge fees on account amount or percentage in settlement of the dispute. 

Prashant Nayak
Advocate, Mumbai
33128 Answers
215 Consultations

sorry to say that the platform gives a chance to the person posting the query to post follow up queries on the main query after receiving replies from the answering advocates

the person cannot, under the pretext of follow up, ask altogether a new query which has got no connection to the main query on a different subject matter

admin - please see to it that such queries under the pretext of follow up are not allowed and the person must be asked to post a new query on a different thread

nevertheless as regards the new question asked in the guise of a follow up to the main query - in my view the conduct of the advocate is unprofessional. As he has a personal interest in the subject matter of the litigation, ideally he should not represent the party for whom he has entered appearance. It appears that in order to escape the rigours of professional conduct and etiquette as applicable to advocates, the said advocate got the disputed property registered in his son's name, which too amounts to a professional misconduct under the Advocate's Act and Bar Council of India rules


The word follow up means it is something related to the main question and NOT altogether a new question 

Just because you have paid in dollars you don't get the right to ask an altogether new question guised as a follow up

Not here for any ratings. 

Yusuf Rampurawala
Advocate, Mumbai
7784 Answers
79 Consultations

If there is no stay order against the execution of the judgement of the lower court then there's no illegality in purchasing or transacting with the property despite pending appeal before high court.

If the appeal is decided in your favour you can take legal action to recover possession.

T Kalaiselvan
Advocate, Vellore
88059 Answers
2377 Consultations


1. Legality of Notary as an Attesting Witness to a Will

  • Under Section 63(c) of the Indian Succession Act, 1925, a Will must be attested by at least two witnesses who sign in the testator's presence.
  • A notary public's role is to verify and authenticate documents, not to act as an attesting witness in the same document.
  • If the notary has signed as the first attesting witness, it raises serious questions of impartiality and validity of the Will.
  • Courts have ruled that a notary cannot act as an attesting witness on a will they have notarized, as it violates the neutral role expected of them.
  • You can challenge the Will on these grounds and seek its declaration as null and void.


2. Can an Advocate Buy Disputed Property While the Case is Pending?


  • Advocate’s Professional Conduct Rules (Bar Council of India Rules, Chapter II, Rule 18 & 19) state that:

    • An advocate must not trade in legal disputes.
    • An advocate must not acquire any interest in the property subject to litigation.

  • If an advocate (or their immediate family) purchases a disputed property during the pending case, it amounts to professional misconduct and can be challenged.

  • Doctrine of Lis Pendens (Section 52 of Transfer of Property Act, 1882):

    • Any transfer of property under dispute while litigation is pending is not valid against the final judgment of the court.
    • You can challenge the registry done in the advocate’s son’s name in court.


  • Next Legal Steps:


    1. File a complaint with the State Bar Council against the advocate for professional misconduct.

    2. Challenge the registry in court citing Lis Pendens and conflict of interest.

    3. Argue that the transfer was done to gain an unfair advantage in the ongoing case.


Conclusion



Both the Will and the property transfer can be legally challenged based on strong grounds. The notary’s role as an attesting witness makes the Will suspicious, and the advocate’s purchase of disputed property while the case is ongoing violates legal ethics and Lis Pendens doctrine. You should consider filing legal objections immediately.

Thanks and Regards,
Advocate Aman Verma
Legal Corridor

Aman Verma
Advocate, Delhi
359 Answers

The advocate's action is unlawful, in violation of professional ethics.

Swaminathan Neelakantan
Advocate, Coimbatore
2976 Answers
20 Consultations

- Since, the case is pending before the Court then there may not be any transaction for the said property

- You can file an Injunction application before the same court after producing the proofs. 

- Further, this Sale deed can be cancelled after filing a Declaration suit before the Court. 

Mohammed Shahzad
Advocate, Delhi
14903 Answers
226 Consultations


Legal Points & Next Steps

  1. Notary as Attesting Witness – Legality

    • A notary cannot be an impartial attesting witness to the same will they notarize.
    • Challenge the will on grounds of conflict of interest & invalid attestation under the Indian Succession Act.

  2. Advocate Buying Disputed Property – Conflict of Interest


    • Advocate & family purchasing disputed property during pending appeal is unethical and possibly against Bar Council rules.
    • File a complaint with the Bar Council of India for professional misconduct.
    • Raise the issue in the High Court appeal to challenge the validity of the registry.


Next Steps


  • Challenge the will’s validity in court based on improper attestation.

  • File a complaint against the advocate with the Bar Council.

  • Inform the High Court about the property purchase & seek intervention.



For detailed, personalized advice, consider a phone consultancy. Hope you find the information helpful. You are free to contact me for further discussion. If you could spare two minutes of your time to write a review, it would be greatly appreciated and bring immense happiness to read it. Thank you. Shubham Goyal.

 

Shubham Goyal
Advocate, Delhi
752 Answers
3 Consultations

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