Kerala High Court: No presumption under Evidence Act for Power of Attorney executed before notaries in foreign countries without notification as a reciprocating country under Notaries Act, 1952

Recently, the Kerala High Court held that powers of attorney executed before notaries in foreign countries cannot be presumed valid in Indian courts unless the country of execution is declared as a reciprocating country under Section 14 of the Notaries Act. The Court was deciding a challenge to a trial court order that had accepted a foreign-executed power of attorney. Emphasising statutory compliance, the Court observed that “in the absence of reciprocity, no presumption under Section 85 of the Evidence Act can be drawn.”

Brief Facts:
The matter originated from a civil suit where the plaintiff, acting through a power of attorney holder, sought relief against the defendants concerning immovable property. The plaintiff prayed for execution of a release deed and a declaration to void a previously executed gift deed. The power of attorney was executed in Missouri, USA, and authenticated before a local notary public. Defendant No.1 objected to the maintainability of the suit, filing an application under Order VI Rule 16 and Order VII Rule 11 CPC, arguing that the power of attorney was not valid for recognition in India.

Contentions of the Parties:
The defendant contended that the State of Missouri was not a reciprocating country under Indian law, and thus, the notarial act could not be recognised. It was also argued that without proper stamping and registration, the document failed to comply with Indian laws, particularly the Kerala Stamp Act.

While some of these objections were not pressed, the primary contention remained that under Section 14 of the Notaries Act, the power of attorney executed in a non-reciprocating country could not enjoy the presumption of due execution under Section 85 of the Evidence Act. The defendant relied on Rei Agro Ltd. and Indira R. Pillai v. Federal Bank Ltd. to emphasise that foreign notarial acts require formal recognition.

In response, the plaintiff's counsel argued that presumption under Section 85 could still be drawn even without a Central Government notification under Section 14. They relied on Jugraj Singh v. Jaswant Singh, Abdul Jabbar v. 2nd ADJ, and Rajesh Wadhwa v. Sushma Govil to support this interpretation.

Observations of the Court:
The Court undertook a detailed analysis of the interplay between Section 14 of the Notaries Act and Section 85 of the Indian Evidence Act. It observed, “To the extent it dwells upon presumption as to powers of attorney executed and authenticated by a Notary Public, Section 85 of the Evidence Act cannot be read in isolation to Section 14 of the Notaries Act, insofar as foreign notarial acts are concerned.”

The Court clarified that for any Indian court to draw a presumption of due execution under Section 85, it is essential that the country where the power of attorney was executed be notified as a reciprocating country under Section 14. Without such notification, courts cannot judicially recognise the foreign notarial act, even if the notary's seal appears genuine. The Court further held, “In the absence of proof of reciprocation of the foreign country where the power of attorney was executed before the notary public, the presumption regarding identification and authentication as provided in Section 85 of the Evidence Act would not arise.”

While acknowledging that the trial court erred in accepting the power of attorney without insisting on such proof, the High Court held that this irregularity was not, in itself, a ground for rejection of the plaint.

The decision of the Court:
The High Court set aside the part of the trial court’s order that had accepted the foreign power of attorney as valid. However, it permitted the plaintiff to produce a properly executed and authenticated power of attorney in compliance with Indian law. The Court refused to strike out the pleadings or reject the plaint but affirmed that statutory procedures must be followed before relying on foreign-executed documents.

The original petition was accordingly disposed of, with liberty granted to the plaintiff to submit a valid power of attorney to proceed with the suit.

Case Title: Margret @ Thankam vs. Joseph Mathew Chettupuzha

Case No.: OP(C) NO. 3213 of 2018

Coram: Justice K. Babu

Advocate for Petitioner: Adv. V.L.Shenoy, Anoop V.Nair, Tanoosha Paul, Rohith C., Avanthika R.

Advocate for Respondent: Advs. M.Baiju Noel, T.S.Likhitha, Jithin T.P.