'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 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.

The Madras High Court, therefore, concluded that Notaries Act does not confine the applicability of Section 85 in the Evidence Act in these 'times of global commerce'.

About the maintainability of the petition by the daughter, the court added that Section 31 of the Specific Relief Act enables her to institute a suit before the jurisdictional civil court. However, the petitioner was aware that the suit was barred by limitation and preferred a writ petition under Article 226 to the High Court. Previously, the single-judge bench of the High Court had dismissed the writ petition at the admission stage by saying that such a relief could not be granted by invoking Article 226 of the Constitution. This order of the single bench was challenged by the petitioner before the Division Bench. Therefore, the bench of Justice Pushpa Sathyanarayan and Krishnan Ramaswamy noted, 

"Even for filing the above writ petition under Article 226, there was enormous delay on the part of the writ petitioner, who is the daughter of the owner of the property, as the same had been filed after 14 years. It is apposite to refer to the judgment of the Hon'ble Supreme Court in Chairman/Managing Director, Uttar Pradesh Power Corporation Limited and others v. Ram Gopal, 2020 SCC OnLine SC 101...it is a vexatious litigation filed by the appellant, as neither any reason was furnished for ot going before the Civil Court nor explanation was given for the delay and laches..."

The writ appeal filed by the daughter of the original owner to set aside the sale deed was therefore dismissed.

Case Title: Dr. Elizabeth Rajan, Daughter of late Mr.Thanarajan v. The Inspector General Of Registration & Ors

Case No: W.A.No.856 of 2021

Citation: 2022 LiveLaw (Mad) 60

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