India: Power Of Attorneys Executed Out Of India - Requirement Of Notarization & Evidentiary Value Before Courts Of India

Article by Vijay Pal Dalmia, Advocate & Partner Vaish Associates Advocates
Email: vpdalmia@vaishlaw.com Mobile: 09810081079
&
Pavit Singh Katoch, Advocate & Principal Associate, Vaish Associates Advocates
Email: pavitsingh@vaishlaw.com Mobile: 09999970810

Under the Indian laws, any power of attorney executed outside India needs authentication, as it is a requirement that a power of attorney has to be executed in the presence of certain designated officers. So, any power of attorney executed outside India should be authenticated by a notary public of that country or the Indian consul.

The (Indian) Evidence Act and the Evidentiary Value of Notarization

Under Section 85 of the Indian Evidence Act, the Court shall presume that every document purported to be Power of Attorney, which has been duly executed before and authenticated by Public Notary can be taken to have been so executed and authenticated. Section 85 of the Indian Evidence Act, 1872 which creates a presumption of authenticity in favor of a notarized power of attorney, reads as under:

"Section 85 - Presumption as to power-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."

Section 57(6) of the Indian Evidence Act provides that the Court shall take judicial notice of all the seals of which English Courts take judicial notice and the seals of Notary Public, as under:

"57. Facts of which Court must take judicial notice

The Court shall take judicial notice of the following facts:-

..................

(6) All seals of which English Courts take judicial notice: the seals of all the 39[Courts in 40[India]] and of all Courts out of 40[India] established by the authority of 41[the Central Government or the Crown Representative]; the Seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized to use by 42[the Constitution or an Act of Parliament of the United Kingdom or an] Act or Regulation having the force of law in 40[India]

........."

Under Section 57 Sub-section (6) of the Evidence Act, the Courts have to take judicial notice of the seals of Notaries Public and when the seal is there, of which judicial notice is taken, there is no reason why judicial notice should not be taken of the signatures as well".

The decision of the Hon'ble Apex Court in the matter of Jugraj Singh and Anr. v. Jaswant Singh and Ors. [AIR 1971 SC 761] is a landmark judgment which has helped to clear the air surrounding the legal proposition about the presumption arising under Section 85 and relevant para of the judgment is reproduced as under:

7. ..........The second power of attorney however does show that it was executed before a proper Notary Public who complied with the laws of California and authenticated the document as required by that law. We are satisfied that that power of attorney was also duly authenticated in accordance with our laws. The only complaint was that the Notary Public did not say in his endorsement that Mr. Chawla had been identified to his satisfaction. But that flows from the fact that he endorsed on the" document that it had been subscribed and sworn before him. There is a presumption of regularity of official acts and we are satisfied that he 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 Section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act.

Notaries Act of 1952

As per the section 14 of the (Indian) Notaries Act of 1952, if the central government is satisfied that by law or practice of any country or place outside India, the notaries act done by notaries outside India, the Central Government may, by notification in the Official Gazette, declare the notarial acts lawfully done by notaries within such country or place shall be recognized within India for all purposes or, as the case may be, for such limited purposes as may be notified in the notification. The Section reads as under:

"Sec.14. Reciprocal arrangements for recognition of notarial acts done by foreign notaries.- If the Central Government is satisfied that by the law or practice of any country or place outside India, the notarial acts done by notaries within India are recognized for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognized with India for all purposes or, as the case may be, for such limited purposes as may be specified in the notification."

There are few notification which have been issued by the Government of India for recognition of notarial acts done by foreign notaries of United Kingdom, Hungary, Belgium, New Zealand and Ireland (http://lawmin.nic.in/la/foreignnotaries.htm).

Accordingly, it has been a usual argument before courts that unless there is a notification in the Official Gazette for recognition of notarial acts done by a particular foreign notary, the court cannot presume the execution and authenticity of Power of Attorney notarized by a notary public of a foreign country. However, this argument cannot be accepted.

The factual situation is that section 85 of the Evidence Act creates a legal presumption in favor of execution and authentication of a document purporting to be a power of attorney executed before, or authenticated by, a Notary Public.

There are some judgments of different High Courts, which hold that Section 85 the Evidence Act, applies to powers of attorney executed before and authenticated by all Notaries and not necessarily only to Notaries defined under the Notaries Act, 1952. Delhi High Court in the case of National and Grindlays Bank Ltd. v. M/s. World Science News and others [MANU/DE/0106/1976; AIR 1976 Delhi 263], Allahabad High Court in the case of Abdul Jabbar v. IInd Addl. District Judge, Orai [MANU/UP/0256/1980; AIR 1980 Allahabad 369] and Calcutta High Court in the case of in Re K.K. Ray (Private) Pvt. Ltd. [MANU/WB/0150/1967; AIR 1967 Calcutta 636 (V 54 C 136)] have held so. Even the judgment of the Supreme Court in the case of Jugraj Singh v. Jaswant Singh [MANU/SC/0413/1970; 1970 (2) Supreme Court Cases 386] suggests that a power of attorney executed before a Notary Public not covered by the Notaries Act, 1952 comes within the expression "Notary Public" under Section 85.

Now the question is whether Section 14 of the Notaries Act, 1952, which is in the context of reciprocal arrangements for recognition of notarial acts done by foreign Notaries, in any way, controls the interpretation of Sections 85 or 57 of the Evidence Act.

Section 14 provides that if the Central Government is satisfied that by the law or practice of any country or place outside India, the notarial acts done by Notaries in India are recognized for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare that the notarial acts lawfully done by the Notaries within that country or place shall be recognized within India for all purposes or, as the case may be, for such limited purposes, as may be specified in the notification. Section 14 no doubt provides for a declaration by the Central Government of recognition within India of all notarial acts done by Notaries of a foreign country but does it imply that no other notarial acts, that is to say, except the acts so recognized by declaration by the Central government, are recognized in India.

The Notaries Act, 1952 is subsequent to the Evidence Act, which was enacted in the year 1872. Further, the purpose of sections 57 and 85 is to reduce the recording of evidence. In the first place, Sections 85 and 57 particularly deal with powers of attorneys executed before and authenticated by Notaries Public which are presumed to have been duly so executed and authenticated, with the seals of the notaries being judicially noticed, whereas Section 14 provides for recognition of "notarial acts". There is no reason why, as far as powers of attorney with notarial seals are concerned, the courts should not go by the provisions of Sections 85 and 57, which particularly deal with such matters, rather than the general provisions of Section 14 which bear on recognition of notarial acts. (There are various other notarial acts which fall for recognition within India.) For raising the statutory presumption, Sections 85 and 57 do not require any recognition of notarial acts of the country or place, as the case may be, where such power of attorney is executed or authenticated. Secondly, there is nothing in the language of Section 14, which requires that only those notarial acts, which are declared as recognized by the Central Government by notification in the Official Gazette, are to be recognized in India. For such matters, like the due execution of Power-of-Attorney in the present day of international commerce, there is no reason to limit the word "Notary Public" in section 85 or section 57 to Notaries appointed in India. Section 14 does not, in any way, control the interpretation of Section 85 read with Section 57 of the Evidence Act.

The Delhi High Court in the case of Rajesh Wadhwa v. Dr. (Mrs.) Sushma Govil [MANU/DE/0335/1988; 37 (1989) DLT 88] has dealt with this aspect. The Court, after considering judgments of various courts in and outside India, came to hold that the provisions of Section 14 of the Notaries Act, 1952, do not create any bar in recognizing the notarial acts of such countries, which are not declared as recognized by a notification of the Central Government.

Even the Allahabad High Court in Abdul Jabbar's case (supra) held that Section 85 of the Evidence Act applies equally to documents authenticated by Notaries Public of other countries and there is no reason to import the provisions of Notaries Act for interpreting the provisions of the Evidence Act.

Another judgment of Delhi High Court in La Chemise Lacosle v. Crocodile Indl. Pte. Ltd. [CS (OS) No. 894/2001], holds that even though there might not be reciprocity between India and another country within the meaning of Section 14 of the Notaries Act, 1952, acts of Notaries in that foreign country could be given legal recognition by courts and authorities in India. The notification under Section 14 of the Notaries Act, in other words, is not held to be mandatory.

In the case of National and Grindlays Bank Ltd. v. M/s. World Science News and others [MANU/DE/0106/1976; AIR 1976 Delhi 263], the Hon'ble Delhi High Court held as:

"(10) The document in the present case is a power of attorney and again on the face of it shows to have been executed before, and authenticated by, a notary public. In view of Section 85 of the Evidence Act, the Court has to presume that it was so executed and authenticated. Once the original document is produced purporting to be a power of attorney so executed and attested, as stated in Section 85 of the Evidence Act, the Court has to presume that it was so executed and authenticated. The provision is mandatory, and it is open to the Court to presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfilled. There is no doubt that the section is not exhaustive and there are different legal modes of executing a power of attorney, but, once the power of attorney on its face shows to have been executed before, and authenticated by, a notary public, the Court has to so presume that it was so executed and authenticated. The authentication by a Notary Public of a document, purporting to be a power of attorney and to have been executed before him is to be treated as the equivalent of an affidavit of identity. The object of the section is to avoid the necessity of such affidavit of identity. Under Section 57 Sub-section (6) of the Evidence Act, the Courts have to taken judicial notice of the seals of Notaries Public and when the seal is there, of which judicial notice is taken, there is no reason why judicial notice should not be taken of the signatures as well".

In yet another case of Rajesh Wadhwa v. Sushma Govil MANU/DE/0335/1988 : AIR 1989 Delhi 144, the Delhi High Court took the view that even though there might not be reciprocity between India and another country, the notarial acts of Notary in the foreign country could be given legal recognition by the Court. The Court further held that Notification under Section 48 of The Notaries Act was held to be non-mandatory. The relevant para of the said judgment is reproduced as under:

"So, this Court has to independently consider whether in absence of any notification under Section 14 of the Notaries Act the power of attorneys endorsed by Notaries Public of USA are admissible in evidence or not Counsel for the Respondent has cited In re: K. K. Ray (Private) Limited.: MANU/WB/0150/1967 : AIR1967Cal636 In the cited case, an affidavit attested by Notary of New York (U.S.A.) was sought to be relied upon."

Even in the case of Zhejiang Medicines and Health Products Import and Export Co. Ltd. and Ors. Vs. Devanshi Impex Pvt. Ltd. [MANU/MH/2737/2016], it was held by the Bombay High Court that as a matter of law that Section 14 of the Notaries Act, 1952 has no bearing on the construction to be put on Section 85 of the Evidence Act, in which case factual reciprocity of notarial acts is quite besides the point.

Also in the case of Rajeshwarhwa Vs. Sushma Govil [AIR 1989 Delhi 144], it was held that where a power of attorney duly authenticated by a Notary Public of a foreign company to institute a suit, it is presumed that the suit is instituted by the competent person on behalf of the company. It was also held that when a seal of the Notary is put on the document, Section 57 of the Evidence Act 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.

It is held that in case of Merck Sharp & Dohme Corporation and Ors. Vs. Glenmark Pharmaceuticals Ltd. (Decided On: 07.10.2015), that A perusal of Section 85 of the Evidence Act makes it clear that in case Power of Attorney has been executed and authenticated by a public notary, the Court has to presume that it was so executed, authenticated and attested. The provisions are mandatory and it is open to the Court to presume that all the necessary requirements for the proper execution of the Power of Attorney had been followed.

To conclude, it is clear that once the original document is produced purporting to be a power of attorney so executed and attested, as stated in Section 85 of the Evidence Act, the Court has to presume that it was so executed and authenticated. The provision is mandatory, and it is open to the Court to presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfilled.

Further, under Section 57 Sub-section (6) of the Evidence Act, the Courts have to take judicial notice of the seals of notaries public and when the seal is there, of which judicial notice is taken, there is no reason why judicial notice should not be taken of the signatures as well. Section 57 of the Indian Evidence Act which enjoins upon the Courts to take judicial notice of seals of a notary public, such judicial notice cannot be limited to notaries appointed in India only. It seems clear if the entire Sub-section is read. Once, this conclusion is reached, there is no reason to limit the meaning of the expression. "Notaries Public" in Section 85 of the Indian Evidence Act to Notaries appointed in India only.

© 2016, Vaish Associates Advocates,
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