'Acts Of Notaries In Foreign Countries Can Be Given Legal Recognition By Indian Courts, 'Reciprocity' U/S.14 Of Notaries Act Not Mandatory': Madras HC

Answering the question of whether a sale deed registered with a power of attorney that was executed in Malaysia is valid or not, Madras High Court has held that the notarial acts of notaries in the foreign countries can be given legal recognition by Indian Courts even in the absence of 'reciprocity' under Section 14 of the Notaries Act.The Division Bench of Justice Pushpa Sathyanarayana and Justice Krishnan Ramasamy observed that once the original document of power of attorney executed and attested as given in Section 85 of the Evidence Act is produced, it is open to the court to presume that all the necessary requirements for the proper execution of Power of Attorney have been duly fulfilled.Section 85 of the Evidence Act creates a presumption of authenticity in favour of notarised Power of Attorney. Section 85 states that the court shall presume every document purported to be Power of Attorney which has been duly executed before and authenticated by a notary public can be taken to have been so executed and authenticated.In contrast, Section 14 of the Notaries Act talks about reciprocal arrangements for recognition of notarial acts done by foreign notaries which does not include Malaysia as of now. Malaysia is also not a signatory to the Convention on Abolishing the Requirement of Legislation for Foreign Public Documents.Therefore, the court ventured to determine if the applicability of Section 85 in the Indian Evidence Act is controlled by Section 14 of the Notaries Act. At the outset, the court noted that Sections 57 and 85 of the Evidence Act allows the court to recognise facts without formal proof."...Therefore, the purpose of Section 85 is to cut down recording of evidence for such matters like the due execution of Power of Attorney etc., in the present day international commerce. The words 'Notary Public' in Section 85 not only applies to Notaries appointed in India but also include the Notary Public of foreign countries. For raising the statutory presumption, Sections 57 and 85 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. In fact, 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."The court also made a reference to National and Grindlays Bank Ltd., v. M/s.World Science News & Others, AIR 1976 Delhi 263 which held that for matters like the due execution of a power of attorney in the days 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 has 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 v. Jaswant Singh,(1970) 2 SCC 386... 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", the Delhi High Court held in National and Grindlays Bank.In Jugraj Singh, the apex court had 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.The Division Bench also referred to Crocodile Int. Pte Ltd. & Anr v. Lacoste S.A. & Anr (2008) and Rajesh Wadhwav Dr. (Mrs.) Sushma Govil (1989) where it was held that notarial acts of the Notaries in the foreign countries can be given legal recognition even in the absence of reciprocal arrangements between that country and India. The court also clarified that the condition in Section 32 (c) of Indian Registration Act only talks about agents, representative or assign duly authorised by a power of attorney executed and authenticated, presenting the documents for registration and not authentication."...The object of Section 32 of the Registration Act is to prevent some outsider from presenting the document for registration with which he has no concern and in which he has no interest. This section applies for registration of Power of Attorney. However, it has no application if the Power of Attorney is produced merely for authentication in which case the only requirement that has to be complied with are those that are set out in Section 33 of the Registration Act."Section 33 of the Registration Act says that a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government is generally recognised for the purposes of Section 32 if the principal does not reside in India at that particular time.In the current case, the court also noted that the Tiruppur sub-registrar has registered the power ...

'Acts Of Notaries In Foreign Countries Can Be Given Legal Recognition By Indian Courts, 'Reciprocity' U/S.14 Of Notaries Act Not Mandatory': Madras HC

Sebin James

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