Authentication Of Power Of Attorney

Bombay High Court

Mohanshet Purushottam Gujar vs Jayashri Vasantrao Mahagaonkar on 18 September, 1978

Equivalent citations: AIR 1979 Bom 202

Bench: S Desai

ORDER
1. The petitioner before me is the tenant in a house situate at Shukrawar Peth, Pune 2; the number of the house is 836. The tenant was occupying one room therein at a small rent. The said house belonged prior' to 21st December 1966 to one Baburao Gokule. It is the respondent's case that by a deed of a sale dated 21st December 1966 executed on behalf of Gokule by his constituted attorney, one Yadav Krishnaji Konde, the said house was sold by Gokule to the respondent. The sale-deed is duly registered. This Konde purported to act on behalf of Gokule under a power of attorney dated 14th March 1966. The sale deed was Exhibit 90 and the power of attorney was Exhibit 89 in the trial Court. It appears that thereafter the new owner instituted several proceedings against the tenants in the said house. Ultimately after exchange of notice a number of suits were filed in all these suits the allegation was that the tenants were defaulters inasmuch as they failed to pay the rent to the new owner. The tenants had contended that the rent claimed was not payable to the respondent landlady, and this wae based on a letter addressed by Gokule actually contending that he remains to be the owner and that the sale-deed had been procured by the respondent by practising fraud. The tenants also raised disputes regarding their rente. Ultimately at the trial the respondent succeeded against some of the tenants including the petitioner before me but failed in respect of other tenants. In the case of the petitioner it was held that the respondent was the owner and entitled to the rent and that the dispute as to standard rent raised in the written statement was not available to the petitioner.
Ultimately, therefore a decree for eviction was passed against him, there was also a decree for certain amount being the arrears of rent. It may be mentioned that all the several suits against the various tenants were tried together, evidence was recorded in only one of them and there was a common judgment by the III Additional Judge of the Court of Small Causes, Pune, dated 15th December 1971, dealing with as many as seven suits- From this judgment various appeals were preferred and three such appeals and one civil revision application were disposed of by the learned IV Extra Assistant Judge. Pune, by his common judgment dated 27th February 1973. The petitioner's appeal against the decree for eviction was dismissed by the learned Extra Assistant Judge.
2. Now, going through the judgment I have found that considerable injustice has been done to this petitioner by reason of his trial being joined along with other tenants whose cases were not identical and the matter had proceeded in a haphazard manner. It is true that as far as the respondent's title was concerned, there was a common issue and an agreement could have been reached as regards joint disposal of that issue. Thereafter, however, as for as the case of each tenant was concerned, it would surely differ, and the way in which it has been disposed of by the learned Judge of the Court of Small Causes is not to be commended.
3. It appears to me, however, that it is unnecessary to go further into this aspect of the matter inasmuch as in the view that I have taken, which I will presently indicate, the respondent had failed to prove (at least for the purpose of this suit) her title to the suit house. If that be so, then it is clear that he was not entitled to the decree which she obtained against the petitioner, and which decree will be required to be quashed in this special civil application.
4. Now, it appears from the proceedings before the trial Court that the trial Court held the title of the respondent proved on the basis of the power of attorney executed by Gokule in favour of Konde, which bears the endorsement of the Taluka Magistrate, Pune, together with the registered sale-deed. As far as the proof of the power of attorney is concerned, the same was marked as an exhibit by the Court on the basis of the provision contained in Section 85 of the Indian Evidence Act. Neither the previous owner Gokule nor his attorney Konde was examined, and it may be mentioned that the tenants were faced with an additional difficulty at the trial, which was that Gokule in fact, who had disputed the title of the respondent and addressed a letter to that effect to the tenants, was dead by the time of the trial. It was Gokule's contention in the said letter that the sale-deed was the result of a fraud practised on him, which obviously the tenants would be unable to prove or substantiate in the absence of Gokule. As the parties to the said fraud would be the said Konde and the landlady's husband it became impossible for the tenants to substantiate the allegation of fraud.
5. Now, Section 85 of the Evidence Act contains a presumption as to powers of attorney and the presumption is couched tn the following language:
"85. Presumption as to powers 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"
For this presumption to apply it is clear then that the power of attorney is required to be executed before and authenticated by one of the persons mentioned in Section 85, and we are concerned in this case with the endorsement made by the Taluka Magistrate, Pune.
6. Now, turning to the power of attorney (Exhibit 89), we find in the first place that the same purports to bear the thumb impression and is not signed by the executant Baburao Bal-want Gokule; it, however, bears the usual endorsement, which is in the following words:
"Solemnly affirmed and signed before me by Shri Baburao Balwant who is identified by Shri N.K. Navgire, Advocate, whom I personally know.
Sd/- xxxxx
Taluka Magistrate,
Poona City."
Poona:
14/3/66.
7. Two comments may be made as far as this endorsement by the Magistrate is concerned. It is clear that the use of the rubber stamp is inappropriate and this would be on two grounds: In the first place, what we have is a thumb impression though it may sometimes be called or could be regarded as equivalent to signature. Further, there was no question of any affirmation before the Magistrate. It is clear, however, that the rubber stamp which would be proper in case of ordinary affirmation has been utilised for the purpose of the alleged authentication under Section 85.
8. Ignoring these aspects which show a regrttable lack of care and attention by the Magistrate concernd, can it be held that the signature or the thumb impression of the executant is authenticated by the Magistrate as is required by S. 85 ? The fact that the Magistrate wants some identification by the advocate whose name is mentioned seems to suggest that the Magistrate is unsure of the identity of the person whose thumb impression is borne by the document. It is now well settled that authentication is more than mere execution before one of the persons designated in Section 85. In this connection I was referred" by the learned advocate for the petitioner to a decision of a single Judge of the Allahabad High Court in Wali Mohammed Chaudhari v. Jamal Uddin Chaudhari, . It is indicated in the aforesaid decision that, a power of attorney must show that the person authenticating has not merely certified that it is executed before himself but that he has further assured himself of the identity of the person who has signed the instrument. In this connection my attention was drawn by the learned advocate for the respondent to a decision of the Supreme Court in Jugraj Singh v. Jaswant Singh. . In para 7 of the report it has been observed that if a power of attorney is endorsed by a notary public, the fact that the notary does not say in his endorsement that the executant has been identified to his satisfaction is immaterial and it would flow from the fact that he had endorsed the document that it had been subscribed and sworn before him. Reliance was placed on the presumption of regularity of official acts, and the Supreme Court was pleased to hold that it was satisfied that the notary must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. Accordingly it was held that the power of attorney with which it was dealing was valid and effective both under Section 85 of the Evidence Act and S. 33 of the Indian Registration Act.
9. A further decision was relied upon by the learned advocate for the respondent, and this was Smt. Kulsumun-nisa v. Smt. Ahmadi Begum, . My attention was drawn to the observations in
paragraph 29 of the said judgment. But these observations merely recite the provision of Section 85 of the Evidence Act and lay down no rule of law or indicate the ratio of the decision.
10. It is true that to a certain extent the observations in the Supreme Court judgment above referred to are in favour of the respondent. The following facts, however, are required to be borne in mind when the question of applying S. 85 in the present case presents itself to the Court: (1) The power of attorney bore the thumb impression of the executant who was alleged to be Gokule. (2) Gokule had addressed letters to the tenants deny- ing the sale to the respondent and alleging a fraud played on him which obviously would be between the actual person who entered into the transaction presuming to act on behalf of Baburao Gokule i.e. Konde and the respondent's husband who acted for her, it being admittedly the position that the respondent being throughout represented by her husband- (3) Gokule was not available to give evidence at the time of the trial inasmuch as he was dead. Now, I have already pointed out earlier that the endorsement by the Magistrate has been made in a somewhat unsatisfactory manner and it will be difficult to hold that such an endorsement must be accepted as authentication by the Magistrate of the thumb impression of Gokule. It is clear from the rubber stamp that the Magistrate does not know the executant. As far as the identity of the executant is concerned, the Magistrate in fact indicates that he is personally unaware of the executant but puts his signature on the basis of identification made by an advocate. It is true that such identification by the advocate is mentioned in the rubber stamp and one may presume that it is on the basis of such identification that the Magistrate proceeded to put the rubber stamp. But will this amount to authentication by the Magistrate? Section 85 contains a presumption, a presumption which may operate in favour of the party relying on a document and to the prejudice of the party alleging that the document is not a genuine one. For the purpose of such presumption to operate, particularly in the background of the facts above ascertained, the authentication must be clear, specific, more decisive and bereft of the features which I have indicated earlier. If there is the slightest doubt, then the Court must be loathe to rely on the presumption contained in S. 85 and must be equally loathe in applying such presumption in favour of the party relying on the document. In my opinion this was a case in which the Presumption under S. 85 should not have been raised in favour of the respondent.
It was not difficult for the respondent to have proved the execution of the power of attorney by calling Konde or some other person who might have been present at the time when Gokule had put his thumb impression on the power of attroney. That was not sought to be done. The advocate who identified Gokule must certainly have been available to the respondent; he was also not called. In this view of the matter, it is clear that the presumption under S. 85 was wrongly made available to the respondent for exhibiting Exhibit 39, the power of attorney; and if that power of attorney is held to be not properly proved, no title would pass to the respondent by reason of the registered sale-deed, Exhibit 90, which is executed not by Gokule but by Gokule's purported attorney Konde. The learned advocate for the respondent informs me that in other proceedings the title of the respondent has been properly proved. What I have held earlier is only the failure to prove the title in a particular case and not the want of title generally. In any other proceedings and even in a subsequent proceeding between the same parties it will be open to the respondent to prove her title by properly proving the power of attorney as indicated, without relying on the presumption under S. 85. Further, it may be that in the several cases where the tenants have chosen to accept the decision of the Court, they would be held to have accepted the title of the respondent and by reason of such estoppel would be prevented from denying her title at a subsequent stage. Thus, what is observed in the case of the petitioner may have very limited application to other cases and other proceedings. Even in a subsequent proceeding between the respondent and the petitioner, which the respondent may adopt, it would be open to" the respondent to prove her title properly.
11. If ft is held that in the present proceedings the respondent had not proved her title to the suit house, the decree passed by the learned Judge of the Court of Small Causes in favour of the respondent and against the present petitioner, which decree was subsequently confirmed by the learned Assistant Judge in appeal, must be held to be improper and will be required to be quashed.
12. This is a decree passed in Civil Suit No. 1687 of 1968, which decree was the subject-matter of Civil Appeal No. 183 of 1972. The Rule is made absolute with regard to both the above decisions and the respondent's suit against the present petitioner will stand dismissed. The parties, however, will bear their own costs in the trial Court, in the lower appellate Court and in this Court.
13. Rule made absolute.

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