S.84 BSA | Power-Of-Attorney Executed Before Foreign Notary Valid Only If Country Is 'Reciprocating' Under Notaries Act: Kerala High Court
The Kerala High Court recently held that in the absence of a notification recognizing a foreign country as a reciprocating country, an Indian court cannot recognize a power-of-attorney executed by a foreign notary public.Justice K. Babu observed, “I am of the considered view that the mandate of Section 57(6) of the Indian Evidence Act that the Court shall take judicial notice of the seals...
The Kerala High Court recently held that in the absence of a notification recognizing a foreign country as a reciprocating country, an Indian court cannot recognize a power-of-attorney executed by a foreign notary public.
Justice K. Babu observed, “I am of the considered view that the mandate of Section 57(6) of the Indian Evidence Act that the Court shall take judicial notice of the seals of notaries public can be made applicable to a power of attorney executed before a notary public in a foreign country only if the foreign country is a reciprocating country. 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.”
In the present case, a plaint was instituted by the power-of-attorney holder against the defendants for executing a release deed and for partitioning a property. The power of attorney was executed and authenticated in Missouri, USA.
The defendant filed petition before trial court to strike out the pleadings and reject the plaint on various grounds. One of the grounds was that the power of attorney executed in the US cannot be recognized in India in the absence of specific notification as per Section 14 of the Notaries Act. When the petition was rejected by the trial court, the defendant has approached the High Court challenging the same.
The contention of the Senior Counsel representing the defendant in the High Court was that the presumption of validity of power of attorney as per Section 85 of the Evidence Act (Section 84 being the corresponding provision in the Bharatiya Sakshya Adhiniyam, 2023) would arise only if the country where it was executed is a reciprocating country provided in Section 14 of the Notaries Act. Only then can a court make use of Section 57(6) of the Evidence Act to take judicial notice of the document.
The plaintiff counsel, however, relied on an Allahabad High Court decision in Abdul Jabbar v. 2nd Additional District Judge (1980) that held that no separate notification is required for the presumption under Section 85 to arise.
Disagreeing with the aforesaid decision, the Court said that the proof of reciprocation is necessary for presuming validity of the power of attorney in question.
It observed, “The resultant conclusion is that the learned Trial Judge ought to have insisted for proof of reciprocation by the State of Missouri to draw the presumption under Section 85 of the Evidence Act with regard to the power of attorney produced before the Court.”
However, noting that the same is not a ground for rejecting the plaint, the Court gave liberty to the plaintiff to produce a duly executed power of attorney to continue with the suit.
Thus, the Court disposed of the case setting aside the impugned order to the extent that it accepted the power of attorney and permitted the plaintiff to proceed with the suit as per the said document.
Case No: OP(C) No. 3213 of 2018
Case Title: Margret @ Thankam v. Joseph Mathew Chettupuzha
Citation: 2025 LiveLaw (Ker) 476
Counsel for the petitioner: S.V. Balakrishna Iyer (Sr.), V.L. Shenoy, Anoop V. Nair, Tanoosha Paul, Rohit C., Avanthika R.
Counsel for the respondent: M. Baiju Noel, T.S. Likhitha, Jithin T.P.