Madras High Court
Sarasu, Ponnerian @ Pachamuthu, ... vs Ramasamy on 10 April, 2007
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
ORDER S. Ashok Kumar, J.
1. The revision petitioners are defendants in a suit filed by the respondents/plaintiffs for the relief of permanent injunction against the defendants.
2. The brief facts of the case are as follows:
The plaintiff has filed the suit through Power Agent by name S.Somasundaram for permanent injunction restraining the defendants from grazing the cattle or taking their bullock carts or in any way encroach upon the suit schedule property. Since the plaintiff Ramasamy is in Malaysia he has appointed one Somasundaram as his Power of Attorney Agent and filed the suit through him. The Power of Attorney executed by Ramasamy is produced in Court.
3. The defendants contend that the Power of Attorney is is duly executed as required under Section 85 of the Indian Evidence Act. Section 85 of the Indian Evidence Act reads as follows:
85. Presumption as to pwoers-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, Consul or Vice-Consul, or representative of the (Central Government), was so executed and authenticated.
As per the above section any Power of Attorney sworn before a Notary Public or a Magistrate or a Judge, can be presumed to have been properly executed and be received as evidence. The Power of Attorney deed in this case has been executed in a hundred rupees stamp paper at Malaysia on 03.12.2003 and attested by one D.M.Palaniveloo, PJK, PPS PESURUHJAYUA SUMPAH which, according to learned Counsel for the respondent means "Notary Public". Below the said signature and attestation, Gazetted Officer Dr.K.Govindan has also certified that the signature is true and correct. Subsequently the said power of attorney has been registered at the office of the District Sub Registrar Namakkal on 15.12.2003 for adjudicated by paying adjudication fees of the documdents registration No. 45 of 2003 in the Register under Section 31 of the Indian Evidence Act and stamp duty of Rs. 100/- was also charged.
4. Learned Counsel for the respondent pressed into service a Judgment of the Hon'ble Supreme Court (Jugraj Singh and Anr. v. Jaswant Singh and Ors.) wherein paragraphs 6 and 7 read as follows:
6. It is plain that presentation for registration could be, either by the Principal or by a duly constituted attorney. It is equally plain that a proper power of attorney plain that a proper power of attorney duly authenticated as required by law had to be made before power could be conferred on another either to execute the document or to present it for registration. That indeed is law.
7. The short question in this case is whether Mr. Chawla possessed such a power of attorney for executing the document and for presentation of it for registration. Now, if we were to take into account the first power of attorney whcih was executed in his favour on May 30, 1963, we would be forced to say that it did not comply with the requirements of the law and was ineffective to clothe Mr. Chawla with the authority to execute the sale deed or to present it for registration. That power of attorney was not authenticated as required by Section 33 of the Indian Registration Act which in the case of an Indian residing abroad, requires that the document should be authenticated by a Notary Public. The document only bore the signature of a witness without anything to show that he was a Notary Public. If any event there was no authentication by the Notary Public (if he was one) in the manner which the law would consider adequate. The second power of attorney however does show that it was executed before a proper Notary Public who complied with the laws of California and authenticated the document as required by that law. We are satisfied that that power of attorney is also duly authenticated in accordance with our laws. The only complaint is that the Notary Public did not say in his endorsement that Mr. Chawla had been identified to his satisfaction. But that flows from the fact that he endorsed on the document that it had been subscribed and sworn before him. There is a presumption of regularity of official acts and we are satisfied he must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. This makes the second power of attorney valid and effective both under Section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act.
5. This Court in 2007 (1) CTC 653 (R.B.K. Rajeswari Nachiar v. N.N.S.A. Mohamed Kasim) has held in paragraphs 8, 9 and 12 as follows:
8. The second limb of the argument of the learned Counsel for the petitioner is that since the power of attorney was executed at Malaysia, which has not been certified by the Collector as provided under Section 32 of the Act, it cannot be relied upon and the same has to be rejected in toto. The power of attorney executed at Malaysia, but engrossed in Indian Non-Judicial stamp paper need not be produced before the Collector for certification since full stamp duty has been paid. The said document is admissible. The opening words in Section 32 of the Act clearly states"when an instrument brought to the Collector under Section 31 is...". Therefore if Section 32 of the Act has to be applied, then the instrument should have necessarily been produced under Section 31 of the Act before the Collector concerned. If the instrument is not produced before the Collector, the Collector does not get any jurisdiction at all to o into the question of whether proper stamp duty has been paid under the Act or not. The production of the document before the Collector is not at all mandatory.
9. Further, since the power of attorney itself was already written in Indian Stamp papers, it cannot be said that the failure to produce before the Collector within three months can be a ground to hold that it will disentitle the party from acting on the basis of such power. Further, the admissibility of the instrument not duly stamped is dealt with under Section 35 of the Act. Improperly stamped instrument excepting the categories mentioned in Clause (a) of Section 35 shall be admitted in evidence on payment of duty with which the same is chargeable with a penalty. The power of attorney is not the one of teh categorieis of the documents mentioned in Section 35(a) of the Act. Hence, even assuming that the power of attorney is not duly stamped, the said document is admissible.
...
12. While the position of law is very clear on this aspect, I am constrained to reject the arguments of the learned Counsel for the petitioner and uphold the contentions raised by the learned Counsel for the respondent. In the result, I find no illegality in the order dated 25.4.2006 of the learned District Munsif/Judicial Magistrate No. I, Ramanathapuram made, in I.A. No. 75 of 2006 in O.S. No. 24 of 2005 permitted S.Bismillah Khan as power agent of the respondent, herein and hence, the same is hereby confirmed. Therefore, the Civil Revision Petition in C.R.P.(PD) No. 472 of 2006 is liable to be dismissed.
In this case also, the Power of Attorney deed has been executed at Malaysia and sworn before the Notary Public which is also attested by a Gazetted Officer of Malayisian Government.
6. Therefore, the document can very well be marked as documentary evidence and I am of the considered view that the impugned order of the learned Additional District Munsif, Namakkal does not warrant interference and this C.R.P.is liable to be dismissed and the same is dismissed. Consequently, connected C.M.P.is also dismissed. No costs.