The Interpreter Who Stands to Benefit
Mr. Perera is a notary whose licence is limited to the Colombo district. A nephew asks him to travel to Kurunegala to attest a deed of transfer of a 40-perch land. The grantor is the nephew's 78-year-old aunt, a Tamil speaker with no Sinhala or English; the nephew will interpret. The grantee is a company owned by the nephew. The deed, drafted by the grantee's lawyer, describes the aunt as transferring the entire land for Rs. 12 million. The notary has never met the aunt. Her hands are arthritic, and the clerk suggests a thumb impression. The nephew wants attestation before a bank closes and says the aunt 'fully understands'. The notary's register is in Colombo. The aunt's previous deed was attested by another notary.
1. What notarial-practice and ethical issues must Mr. Perera resolve before he can attest, and what steps should he take?
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First, jurisdiction: if his licence is district-limited, travelling to Kurunegala to exercise notarial powers is outside his assigned district; he must verify the terms of appointment and, if necessary, decline or arrange a Kurunegala notary. Second, identity and capacity: he must see the aunt personally, verify her identity with reliable documents, satisfy himself that she is lucid and acting freely, and record how he did so. Third, language: the deed must be read over and explained to her in Tamil. The nephew is the grantee's owner and has a direct conflict, so he is not a suitable interpreter; an independent competent interpreter should be used, and the notary should record the interpretation. Fourth, execution: a thumb impression may be used where the party cannot sign, but the notary must comply with the statutory requirements for that mode of execution and record it, not simply let the clerk take it. Fifth, the deed must reflect her instructions, not the grantee's draft; he must check the title, consider whether she owns the entire land, and explain the effect. Finally, he must make the required register and protocol entries and retain the deed. If doubt remains, he should refuse to attest.
2. If he nevertheless attests in the nephew's presence and takes the thumb impression, what are the likely legal and disciplinary consequences?
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If he attests as proposed, the instrument is exposed to challenge on several grounds: possible want of jurisdiction; failure to read over and explain in a language she understood; use of an interested interpreter; and doubt about voluntariness and capacity. A court may set aside the transfer or award damages; the notary may face disciplinary proceedings under the Notaries Ordinance and civil liability. The thumb impression is not automatically invalid, but the record must show why it was used and that she adopted it. The fact that the nephew's company is the grantee creates a conflict that a prudent notary must avoid. The notary's register and protocol must still contain a true record; a false or incomplete record aggravates the misconduct. The notary should also consider whether the transaction is suspicious for AML purposes if the price is unusual or the parties are concealed. The safe course is to stop, arrange an independent notary and interpreter in Kurunegala, and document the aunt's independent advice.