Court: Kerala High Court
Bench: JUSTICES A.M. Shaffique & Anu Sivaraman
K.M. Mathew @ Dayee Vs. Giji Mathew @ Giji M.S. & Anr. On 17 August 2017
Law Point:
Section 33(1) — Evidence Act, 1872 — Section 85 — Power of Attorney — Validity — Burden of proof — Presumption — Rebuttal — Power of Attorney is seen attested in State of Illinois and authenticated by Notary Public which is enough for purpose of raising presumption under Section 85 of Evidence Act — When a person challenges Power of Attorney, it is for that person to rebut presumption available under Section 85 of Evidence Act.
JUDGEMENT
1. The appeal is filed by the 1st respondent in OP No. 424/2005 of the Family Court, Kottayam challenging the judgment by which the Original Petition had been decreed declaring the 1st respondent herein as the owner and title holder of the petition schedule property and further declaring that Ext.A2 settlement deed is not binding on her. A permanent prohibitory injunction is also granted restraining the appellant and the 2nd respondent from trespassing into the property or alienating the same.
2. The facts involved in the present appeal as borne out from the pleadings are as under. For easy reference, the parties are described as shown in the Original Petition. The petitioner and the 1st respondent got married on 1.11.1987 following Christian rites and ceremonies. 3 children were born to them in the wedlock. The 1st respondent is a permanent resident of United States of America and he has got citizenship. The contention urged by the petitioner is that 1st respondent deserted her and the children. An attempt was made by the 1st respondent in the year 1999 to sell the petition schedule property. According to the petitioner, the said property was purchased with the amount of Rs. 50,000 entrusted to the 1st respondent as patrimony and by sale of 35 sovereigns of gold ornaments. In order to save stamp duty, the property was styled as a gift deed and she was in possession and enjoyment of the said property. In the year 2005, when she attempted to remit basic tax, it was understood that the property had been mutated in the name of another person. On inquiry, she understood that the property was assigned in the name of 2nd respondent based on a Power of Attorney dated 25.5.2002. She alleged that she has not executed the Power of Attorney and the signature in the Power of Attorney does not belong to her and that the document was created fraudulently. She contended that though she was in America during the relevant time, she had not gone to a notary public nor she has executed any document. It was therefore contended that the gift deed bearing No. 1597/2004 based on the Power of Attorney is not valid, and hence she sought for declaration that the documents were invalid.
3. 1st respondent contended that he was working in America since 1984 and his entire earnings were appropriated by the petitioner. She accompanied the 1st respondent to America in 1989 and returned in the year 1991. He denied the fact that the property was purchased with the fund of the petitioner’s brother. The petitioner was living with him in America and she gave birth to the elder child on 22.9.1990, the 2nd child was born in India on 15.10.1991 and the 3rd child on 20.11.1992. He contended that she executed a Power of Attorney in favour of the 2nd respondent with an intention to transfer the property to the first respondent. The reason for executing the Power of Attorney was that her brother will not permit her to go to the Sub-Registry Office to execute the document. It is stated that the 2nd respondent is their family friend and the Power of Attorney has been attested before a Notary Public in America. It is based on the said Power of Attorney that the document was executed. He denied any fabrication of document or fraud being played. The 2nd respondent also filed objection. He admitted that he had executed the gift deed based on a Power of Attorney.
4. Before the Court below, the petitioner was examined as PW1. Respondents were examined as RW1 and RW2. Petitioner relied upon Exts.A1 to A5 and respondents relied upon Exts.B1 to B5. Ext.A1 is the sale deed under which the property was purchased in the name of the petitioner. Ext.A2 is the gift deed by which the property was settled in favour of the first respondent. Ext.A3 is the Power of Attorney on the basis of which Ext.A2 document was created. The Court below on a consideration of the entire factual situation and the evidence decreed the petition as sought for.
5. While impugning the aforesaid judgment, the learned Senior Counsel appearing for the appellant submitted that the Court below had committed serious error of law in decreeing the suit. When a person alleges that a Power of Attorney had been fraudulently created, it is the obligation of the said person to prove the said fact. Other than the oral testimony of PW1, there is no other evidence. The Court below committed serious error in holding that the burden is on the 1st respondent to prove that Ext.A3 Power of Attorney is genuine. Only a photostat copy of the Power of Attorney had been produced and no steps were taken even to produce the original Power of Attorney. It is contended that the evidence clearly indicates that the original of Ext.A3 is not in the possession of 1st respondent. Learned Counsel also placed reliance upon the following judgments.
(i) British India Steam Navigation Co. Ltd. v. M/s. Shanmughavilas Cashew Industries, 1974 ILR (Ker.) 150.
In the above case, a Division Bench of this Court while considering the admissibility of a photostat copy of a document held that even if the plaintiff’s Counsel endorses for receiving a photostat copy of document in evidence, it only means that the requirement of formal proof of the document is waived. It would be admissible in evidence as secondary evidence only if sufficient foundation had been laid in the evidence to show that the requirement under Section 65 of the Indian Evidence Act have been proved to exist. It was held that in the absence of such conditions being proved, there is no proof to the existence, condition or the contents of the document.
(ii) Kanhaya Lal v. National Bank of India Limited, Delhi, AIR 1923 PC 114.
In this case, Privy Council was considering a question relating to the effect of registration. The respondents urged that the conveyance in favour of the appellant was bad because the registration was not in order, since the registration does not bear that a proper Power of Attorney was possessed by the person asking for the registration and that it does not afford proper evidence of execution. It was held that when the deed was presented by the Attorney and the endorsement of the deed as registered bears that he held a special Power of Attorney authorizing him to appear, it must be presumed that the Power of Attorney was a proper power under the terms of Section 33 of the Registration Act.
(iii) National and Grindlays Bank Ltd. v. World Science News, 12 (1976) DLT 69=AIR 1976 Del. 263.
This judgment is relied upon to emphasise the evidentiary value of notarization. The question arose was whether the pleadings have been signed by a duly authorised person on behalf of the Bank. Referring to Section 85 of the Evidence Act, it was noticed that a Power of Attorney on the face of it shows that it had been executed before, and authenticated by a notary public. In the said judgment, the learned Judge further observed that for the purpose of proving due execution of a Power of Attorney in the present day of international commerce, there is no reason to limit the words Notaries Public in Section 85 or Section 57 to Notaries appointed in India. The fact that Notaries Public of foreign countries have been recognised as proper authorities for due execution and authentication for purpose of Section 85 of the Evidence Act is illustrated by the Apex Court in Jugraj Singh v. Jaswant Singh, AIR 1971 SC 761. In the said case, Apex Court held that a Power of Attorney executed and authenticated before a Notary Public of California satisfied the test of Section 85 of the Evidence Act and Section 33 of the Indian Registration Act. It was further held that Section 57 of the Indian Evidence Act enjoins upon the Courts to take judicial notice of seals of notary public. Such judicial notice cannot be limited to Notaries appointed in India only. Of course, it is held that the presumption is rebuttable.
(iv) Yogesh Singh v. Niranjan Lal, 20 (1981) DLT 264=AIR 1981 Del. 222.
In this case also, a learned Judge of Delhi High Court held that verification of pleadings by a recognised agent as the Attorney duly appointed under the general power of attorney is valid. This judgment was rendered in the light of Section 2 of the Power of Attorney Act, 1882 and under Order III Rule 1 of the Code of Civil Procedure. It was also held that a presumption could be raised under Section 85 of the Indian Evidence Act.
(v) Pandurangan v. Sarangapani and Another, AIR 1982 Mad. 372.
In this judgment, the learned Judge held that a party assailing an alienation concluded by executing the document before a Notary should prove that the Notary had not personally examined the parties and that they were fit and able to give their consent to the transaction. That was a case in which a suit was filed for declaration that the sale deed executed in favour of the first defendant and subsequently a sale deed executed by the first defendant in favour of 2nd defendant is null and void. One of the questions that had arisen was regarding the functions of a Notary Public. It was held that the burden of proof lays on the plaintiff to show that notary’s duty had not been duly performed in the case.
(vi) Kamla Rani v. Texmaco Ltd., 139 (2007) DLT 61=AIR 2007 Del. 147.
This case concerns a presumption in terms of Section 85 of the Indian Evidence Act. It was held that authentication by a notary public is a solemn act performed by the notary public whose duty is to ensure that the executant is the person before him and is identified to his satisfaction. Once a document is authenticated by a notary public, it is to be presumed that the document was duly executed and was in order. The use of the expression “shall presume” shows that the section is mandatory and the Court has to presume that all necessary requirements for the proper execution of the Power of Attorney were duly fulfilled before the notary public. Onus therefore would lie on the opposite party to prove to the contrary.
6. On the other hand, learned Counsel for the petitioner/1st respondent herein supported the stand taken in the matter. It is contended that fraud had been played on the petitioner and the evidence clearly indicated that the 1st respondent wanted the property to be assigned in his favour which was done through a Power of Attorney holder. The Power of Attorney was fraudulently created and therefore the Court below was justified in decreeing the suit. In fact, the case was originally decreed ex parte which was set aside as per judgment dated 5.1.2010 in Mat.
Appeal No. 291/2009 and remitted back for fresh disposal. After remand, RW2 was examined. PW1 was recalled and examined.
7. The point that was considered was whether the petitioner was entitled for the declaration as sought for and whether the settlement deed and the Power of Attorney could be set aside. PW1 in her evidence has stated that all the patrimony and gold ornaments given to her by her parents were appropriated by the 1st respondent. According to PW1, the property was purchased in the name of 1st respondent and he proposed to sell the property in the year 1999. The brothers of the petitioner offered to give money to the 1st respondent and accordingly, he executed a gift deed in her favour. The sale deed was not executed, to avoid payment of stamp duty. According to her, the deed of Power of Attorney and the settlement deed executed based on the said Power of Attorney are invalid. The Family Court after considering the evidence observed that the petitioner has proved that Ext.A3 deed of Power of Attorney is not a genuine one and not executed by her. It is observed that the original Power of Attorney had not been produced in the case though the same is in the Registry Office. Though the document produced as Ext.A3 is sealed and signed by a Notary Public, specific address of the attestor is not mentioned in the document. RW1, the 2nd respondent did not produce any cover by which the Power of Attorney was received by him. Further, RW2, the 1st respondent could not adduce any cogent evidence to prove the Power of Attorney as a genuine one and that it was executed by his wife. It is in the said circumstances, it was found that the attempt of the 1st respondent was to grab the property of his wife with the help of 2nd respondent. It was therefore held that Ext.A3 is not an authenticated Power of Attorney and it is a fabricated document. Consequently, settlement deed Ext.A2 cannot be treated as conferring any title on the 1st respondent.
8. The short question that arises for consideration is whether the Court below was justified in placing reliance upon a notarized Power of Attorney and arriving at a finding that it was not genuine.
9. First of all, it is an admitted fact that only a photostat copy of the Power of Attorney had been produced and marked as Ext.A3. The copy was produced by none other than the petitioner along with the petition. Her contention in the petition is that when she attempted to pay tax in respect of the property for the year 2005, it was understood that the property was mutated and tax was already paid. Further inquiries revealed that 2nd respondent had paid the tax. On making inquiries with him, he informed that he has a Power of Attorney. He has given a photostat copy of Power of Attorney to the petitioner. The contention is that she had not signed the Power of Attorney and it is a fabricated one. While she was abroad in US, she has not gone to a Power of Attorney. While she was examined as PW1, in cross-examination she states that she has not seen the original of Ext.A3. She was at US in May, 2002. She had gone there along with the children. She came back after two months. RW1 is the 2nd respondent. In the chief affidavit filed, he stated that the petitioner had not enquired with him in regard to the Power of Attorney. She had sent the Power of Attorney to him. At that time, 1st respondent was in US. It was only on the basis of Power of Attorney that the document was executed by him. He does not know anything about the execution of Power of Attorney. The document was executed with the approval and knowledge of the petitioner. In cross-examination, he was asked whether Ext.A3 Power of Attorney was fraudulently created by 1st respondent with his knowledge, which he denied. He deposed that, in the cover in which he received the Power of Attorney, the address was that of the petitioner. According to him, he had given the original of Ext.A3 to the Sub-Registrar Office. He had not taken it back. An application was filed by the petitioner calling upon him to produce the original Power of Attorney. He had filed a reply to the same. RW2 in his affidavit-in-chief has stated that, upto 1999, he was having a peaceful family life with the petitioner and his children. He had also produced Ext.B2 series letters. During the said time, he had a very good job in US. He received certain properties as per partition in his family. Since the original partition deed was missing, for the purpose of creating a document, and for proper management of the property, he executed document No. 1799/99 in the form of a gift in favour of his wife. He never intended to sell the property and thereafter he was paying the tax and the property was in his possession all along. He further deposed that the petitioner’s brothers did not have the financial capacity to purchase the property whereas he had contributed money to them for their requirements. During 2002 April, the petitioner along with children had visited US. The petitioner’s brother was demanding that the said property should be mortgaged for taking loan and she was under severe pressure. The petitioner had requested him to speak to her brother. He requested her to execute a gift deed in his favour and that it is enough that she gives a Power of Attorney and she need not go to the Sub-Registrar’s Office and accordingly the Power of Attorney was issued in the name of the family friend the 2nd respondent and the Power of Attorney was sent to the 2nd respondent. Petitioner’s brother was putting pressure on her for mortgaging the property for the loan. In July, 2004, the brother of the petitioner had come to know that the property was in her name and when he made demands, she informed the matter to the 1st respondent and immediately they made arrangements with the 2nd respondent to execute the gift deed in his name. After the matrimonial issues had arisen between the parties, though he tried to contact her, she was not willing to talk to him. According to the 1st respondent, it is at the instance of her brothers that she was taking a different stand. In cross -examination, he was questioned on the veracity of Ext.A3.
10. Ext.A3 is apparently a photostat copy. The 2nd respondent in his evidence submitted that at the time of executing Ext.A2, he has given the original of Power of Attorney to the Sub-Registrar’s Office. An application seems to have been filed calling upon him to produce the original of Power of Attorney. He had filed an affidavit stating that at the time of registration of the settlement deed, based on the Power of Attorney, he has produced the Power of Attorney before the Sub-Registry Office. His understanding is that when the 1st respondent came back, he along with the petitioner had gone to the Sub-Registrar Office and took back the Power of Attorney and that is the reason why she was having a copy of the Power of Attorney. The Power of Attorney holder of the 1st respondent also filed an application calling upon the petitioner to produce original Power of Attorney as well as the original gift deed before Court. Petitioner filed an affidavit stating that she does not have the originals of both the documents. The question is whether the validity of the Power of Attorney could be considered in the absence of the original being produced before Court. The document which was marked as Ext.A3 is only a photostat copy. Photostat copy is a secondary evidence. But, a photostat copy can be taken in evidence only if any of the conditions specified in Clauses (a) to (g) of Section 65 of the Indian Evidence Act is complied with.
11. Section 65 reads as under:
“65. Cases in which secondary evidence relating to documents may be given—Secondary evidence may be given of the existence, condition, or contents of a documents in the following cases:
(a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved , or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is public document within the meaning of Section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence ;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved it the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.”
12. In this case, none of the parties admits to be in possession of the original Power of Attorney. RW1, the 2nd respondent, in his affidavit as well as in evidence states that at the time of executing Ext.A2, he had submitted the Power of Attorney before the Sub-Registrar’s Office. He also submits that as per his information, it was collected by petitioner and her husband.
13. Ext.A3 shows that it was executed by the petitioner and that too before a Notary Public. Section 85 of the Evidence Act reads as under:
“85. Presumption as to powers-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, [Indian] Consul or Vice- Consul, or representative of the [Central Government], was so executed and authenticated.”
As rightly contended by learned Counsel for appellant, a presumption can be raised in respect of a document attested by a notary public, unless otherwise proved. Ext.A3, the Power of Attorney, which is alleged to be fabricated, is attested by one Sonny Lukose, Notary Public, State of Illinois. This Power of Attorney has been given in the name of 2nd respondent to execute sale, settlement of gift deed in respect of the petition schedule property in favour of the 1st respondent.
14. A Division Bench of this Court in British India Steam Navigation Co. Ltd. (supra), held that a copy of the document cannot be taken as secondary evidence. If it is to be admitted in evidence, necessary foundation has to be laid down for reception of secondary evidence of the existence, condition and contents of the original Power of Attorney. The beneficiary of the Power of Attorney is the 1st respondent and the 2nd respondent is the Attorney. None of them has a dispute that it is not a true photostat copy of the original. The 2nd respondent admits to have received the Power of Attorney. The petitioner had given a notice as mentioned in Section 66(a) calling upon the 2nd respondent to produce the original Power of Attorney. The 2nd respondent has filed an affidavit stating that he had submitted it before the Sub-Registry Office. In such circumstances, when the contents of the document are admitted, and when necessary steps had been taken by the petitioner in terms of Section 66(a) of the Evidence Act, there is no other option other than to place reliance on the photostat copy. Further, the beneficiary as per the photostat copy, the 1st respondent, does not contest on the evidentiary value of the document whereas he also places reliance upon the said document. Therefore, we are of the view that the Family Court was justified in treating the photostat copy as secondary evidence in the case.
15. However, the larger question would be whether presumption available to Ext.A3 in terms of Section 85 is rebutted or not. Other than the oral testimony of PW1, there is no other evidence. RW1 and RW2 confirm the veracity of the Power of Attorney. Admittedly, this is a Power of Attorney attested abroad. The execution is denied. Other than contending that she had not signed the original, no attempt had been made to prove that she has actually not signed the said document. The document was not sent for expert opinion to compare the admitted signatures with reference to the signatures in Ext.A3. Other than putting a few questions to the witness regarding the comparison of the signatures, the Court also does not come to any conclusion regarding the difference in signatures. Section 73 of the Evidence Act is relevant, which reads as under:
“73. Comparison of signature, writing or seal with others admitted or proved—
In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.”
In this case, no such attempt had been made by the Trial Court. At any rate, comparison of signature is an expert field and unless attempts are made to disprove the signature in the document, it may not be possible for the Court to arrive at a conclusion that the document is not genuine.
16. The Court below had proceeded on the basis that the burden to prove the existence of a genuine Power of Attorney is on the 1st respondent. This finding is totally incorrect in view of the presumption under Section 85 of the Indian Evidence. Act. The document produced is a notarised Power of Attorney which is valid in terms of Section 33 of the Registration Act. Section 33(1)(c) reads as under:-
“33. Powers-of-attorney recognisable for purposes of Section 32—(1) For the purposes of Section 32, the following powers-of-attorney shall alone be recognised, namely:
(a) xxxx
(b) xxxx
(c) if the principal at the time aforesaid does not reside in [India], 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.”
17. The Power of Attorney is seen attested in the State of Illinois and is authenticated by a notary public which is enough for the purpose of raising a presumption under Section 85. When the Sub Registrar had registered Ext.A2 document, it cannot be contended that he had not seen Ext.A3. Therefore, existence of the original of Ext.A3 is a fact which raises a presumption of execution and authentication. Consequently, the registration also becomes valid under law.
18. When a person challenges the Power of Attorney, it is for that person to rebut the presumption available under Section 85. Learned Counsel for respondent herein tried to impress upon us by contending that there is nothing to indicate that the Notary Public who had attested the Power of Attorney was having the authority to do so at the relevant time. But in the absence of any evidence to disprove a presumption that could be raised in terms of Section 85, which is rather a settled position of law as mentioned in the judgments afore stated, from the available evidence, we are unable to conclude that the petitioner had discharged the burden to rebut the said presumption. The Court below have wrongly cast the burden of proof on the 2nd respondent without referring to the statutory presumption available under Section 85 of the Evidence Act.
19. That apart, coming to the facts of the case, the property was originally in the name of the 2nd respondent. He obtained the property by partition in his family. He executed a gift deed Ext.A1 in favour of his wife. Contention raised by the petitioner was that the property was actually purchased in her name on the basis of the money given by her brothers. There is no evidence to prove the aforesaid contention. None of her brothers were examined to prove the said fact. No details are given regarding the amount that had been spent for enabling the 1st respondent to execute the gift deed in favour of the petitioner. The 1st respondent has a case that her brothers were insisting the petitioner to mortgage the property in her name for loan facilities, which they were not agreeable and it is for that purpose the Power of Attorney was given and a document was created in his favour. Other than the oral testimony of PW1, there is no evidence to prove that her brothers have expended any amount to enable the 2nd respondent to transfer his property in her favour.
20. Similarly, other than the oral testimony of RW2, there is no evidence to prove the allegations made by him regarding the pressure put by the petitioner’s brothers for creating mortgage. Be that as it may, the property originally belonged to the 2nd respondent and by subsequent gift deeds, it has come back in his name.
21. Taking into consideration the over all factual circumstances, we are of the view that the appeal has to be allowed by setting aside the judgment of the Court below.
Accordingly, this appeal is allowed. The judgment and decree of the Family Court in OP No. 424/2005 is hereby set aside. Parties shall bear their own costs.
Appeal allowed.
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