Whether it is necessary to examine executant of notarized power of attorney to prove execution of power of attorney?

The only question which arises for consideration is, whether in absence of the notary public being produced as a witness or the executant thereof being not produced as a witness to prove the same, was the document proved as per law.

33. Authentication by a notary public is a solemn act performed by the notary public whose duty is to ensure that the executant is the person before him and is identified to his satisfaction. Once a document is authenticated by a notary public, it will be presumed that the document was duly executed and was in order. The use of the expression 'shall presume' shows that the section is mandatory and the court has to presume that all necessary requirements for the proper execution of the power of attorney were duly fulfilled before the notary public. As observed in AIR 1984 363 E.C. & E. Co. Ltd. v. J.E. Works, if 2 conditions are satisfied, firstly the power of attorney being executed before a notary public and secondly it being authenticated by a notary public, a presumption would arise under Section 85 about the executant of the power of attorney.

34. Onus would thus lie on the opposite party to prove to the contrary.

35. It is well settled that authentication would mean more than mere execution. Where proof of authentication surfaces, benefit of Section 85 has to be granted.

36. No negative evidence has been brought on record, none has been shown to me by the petitioners.

37. The purpose of Section 85 of the Evidence Act appears to be that a duly executed and authenticated power of attorney can be proved under Section 85 without undue expenses to be incurred by producing the executant thereof or the original board resolution.

38. The reason is obvious. Banks, insurance companies and multinational companies empower officers to institute and file suits on their behalf. Large number of suits are filed by these organisations. If the original board resolution or the executant of the power of attorney has to submit itself/himself before the court as a sine qua non to prove the power of attorney, practical difficulties would arise and un-necessary expenses would be incurred by the organisations to prove the document in the afore-noted manner.

39. I am in full agreement with the view taken by the learned Rent Control Tribunal that the authority of the person who had signed and verified the petition as also instituted the eviction petition stood duly proved by means of production of the authenticated and notarised power of attorney bearing the seal of the notary public.

IN THE HIGH COURT OF DELHI

CM(M) Nos. 64 and 65, 67, 69, 92 and 101/2005

Decided On: 29.01.2007

 Kamla Rani  Vs. Texmaco Ltd. and Ors.

Hon'ble Judges/Coram:

Pradeep Nandrajog, J.

Citation : AIR 2007 Delhi 147

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What is presumption regarding power of attorney executed before notary?

Document No. 2 is the original power of attorney tendered in evidence along with affidavit of evidence. The said power of attorney appears to have been executed on behalf of the complainant company by its director Ashwin Sheth. The affidavit appears to have been sworn in before and has been notarized by the Notary Public. Section 85 of the Evidence Act provides that 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 Counsel or Vice Counsel or representative of the Central Government, was so executed and authenticated. Section 4 of the Evidence Act provides that whenever it is directed by the Evidence Act that the Court shall presume a fact, as it shall regard such fact as proved unless and until it is disproved. In view of Section 85 read with Section 4 of the Evidence Act, the power of attorney purporting to have been executed and authenticated before the Notary Public shall be presumed to have been executed and so authenticated unless and until it is disproved. Therefore, the burden lies on the accused to establish that the said power of attorney was not duly executed and authenticated by the person by whom it purports to have been executed. In view of this legal position, no objection could be taken to the admission and exhibition of the original power of attorney.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 40 of 2011

Decided On: 16.03.2011

Ashish C. Shah Vs. Sheth Developers Pvt. Ltd., 

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Whether power of attorney executed before notary foreign country is presumed to be authentic?

 The authentication bears not only the seal but also signatures of the Notary Public. S. 85 of the Evidence Act provides as under :

"85.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."

(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 attornney so executed and attested, as stated in S. 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 fulfillled. There is no dobt 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". What is argued by Shri Rameshwar Dial, learned counsel for defendants I to 3, is that the Notary Public in Section 85 or Section 57 of the Evidence Act merely means notaries appointed under the Notaries Act 1952. The argument is that where a document purports to be a power of attorney, before the Court can presume it to be so executed and authenticated as is contemplated by S. 85, it should have been authenticated by Indian Consul or Vice-Consul or the representative of the Central Government and not by a notary public of a foreign country. For one thing Notaries Act 1952 was not there when Evidence Act which was the first Act of 1872 was enacted. Secondly, the purpose of Sections 57 and 85 is to cut down recording of evidence. For such matters, like the due execution of a power of attorney in the present day of international commerce, there is no reason to limit the word "Notary Public" in S. 85 or Section 57 to Notaries appointed in India. The fact that notaries public of foreign countries have been recognised as proper authorities for due execution and authentication for purpose of section 85 of the Evidence Act is illustrated by the Supreme Court in case Jugraj Singh and anr. v. Jaswant Singh and or s. . In this case the Supreme Court held that a power of attorney executed and authenticated before a notary public of California satisfied the test of S. 85 of the Evidence Act and S. 33 of the Indian Registration Act. If the interpretation of notary public is limited to notaries public appointed in this country only, it will become impossible to carry on commerce with foreign countries. Surely, S. 57 of the Indian Evidence Act which enjoins upon the Courts to take judicial notice of seals of 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 S. 85 of the Indian Evidence Act to Notaries appointed in India only.

Delhi High Court

National And Grindlays Bank Ltd. vs World Science News And Ors. on 27 January, 1976

Equivalent citations: AIR 1976 Delhi 263, 12 (1976) DLT 69, ILR 1976 Delhi 559

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