(2025) 7 KCD 310 : 2025 KER 56880 : 2025 KLT OnLine 2549
Civil Procedure Code, 1908 – Order VI Rule 16 and Order VII Rule 11 read with Section 151 – Notaries Act, 1952 – Sections 3, 8, 14 – Indian Evidence Act, 1872 – Sections 57(6), 85.
Foreign Power of Attorney – Recognition of Notarial Acts – Presumption under Section 85 of Evidence Act – Judicial Notice under Section 57(6) of Evidence Act – Requirement of Reciprocating Country under Section 14 of Notaries Act.
High Court of Kerala
K. Babu, J..
O.P (C) No.3213 of 2018; July 31, 2025
Facts: An Original Petition was filed challenging an order of the Additional Subordinate Judge’s Court-III, Ernakulam, which rejected an application by Defendant No.1 to strike out pleadings and reject the plaint in a suit. The plaintiff had instituted the suit seeking a direction for defendants to execute a release deed and to declare a gift deed void. The plaint was filed by a Power of Attorney Holder, relying on a power of attorney (Ext.P1) executed and authenticated by a Notary Public in St. Louis County, Missouri, USA. Defendant No.1 contended that this notarial act could not be recognized in India as Missouri was not shown to be a reciprocating country, nor was there any notification under Section 14 of the Notaries Act, 1952, recognizing Missouri. The Trial Court rejected this contention, prompting the present challenge.
Issue: Whether a power of attorney executed and authenticated by a Notary Public in a foreign country (USA, specifically Missouri) can be recognized in India, enabling the drawing of a presumption under Section 85 of the Indian Evidence Act and taking judicial notice of its seal under Section 57(6) of the Indian Evidence Act, in the absence of a notification under Section 14 of the Notaries Act, 1952, declaring that country as reciprocating.
Held:
Section 85 of the Indian Evidence Act, which presumes the due execution and authentication of a power of attorney by a Notary Public, cannot be read in isolation from the specific provisions of Section 14 of the Notaries Act, 1952, concerning notarial acts done by foreign notaries.
For an Indian Court to recognize a notarial act performed by a notary public in a foreign country, it is imperative for the Central Government to issue a notification under Section 14 of the Notaries Act, declaring that such notarial acts shall be recognized in India.
The mandate of Section 57(6) of the Indian Evidence Act, which requires courts to take judicial notice of the seals of Notaries Public, is applicable to a power of attorney executed before a notary public in a foreign country only if that foreign country is a reciprocating country, meaning there is proof of such reciprocation.
In the absence of proof of reciprocation by 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.
The Trial Court erred by not insisting on proof of reciprocation by the State of Missouri to draw the presumption under Section 85 of the Evidence Act regarding the power of attorney.
However, the conclusion that the power of attorney cannot be recognized is not a ground to strike out the pleadings or reject the plaint.
The plaintiff is granted liberty to produce a duly executed power of attorney to proceed with the suit.
The impugned order, to the extent it accepted the power of attorney (Ext.P4) and permitted the plaintiff to proceed with the suit with its aid, was set aside.
The High Court disagreed with the view taken by the Allahabad High Court in Abdul Jabbar v. 2nd Additional District Judge (AIR 1980 All 369), which held that the presumption under Section 85 could be drawn even if no notification under Section 14 of the Notaries Act was shown.
The Supreme Court’s decision in Jugraj Singh v. Jaswant Singh (AIR 1971 SC 761) was distinguished, as the scope and application of Section 14 of the Notaries Act were not argued or considered in that case.
The High Court referenced Rei Agro Ltd, and others (AIR 2015 Cal 54) and Indira R. Pillai @ Indiramma v. Federal Bank Ltd, Kottarakkara Brach and others [2017 (5) KHC 849] in its reasoning.
For Petitioner: Advs. V.L. Shenoy, Anoop V. Nair, Tanoosha Paul, Rohith C. & Avanthika R.
For Respondent: Advs. M. Baiju Noel, T.S. Likhitha & Jithin T.P.
