Judgment

HIDAYATULLAH, C.J.I. : This is an appeal against the judgment of a learned single Judge of the High Court of Punjab dated December 14, 1966 confirming the dismissal of a suit filed by the appellants. The facts of the case are as follows:

One Bhag Singh mortgaged certain lands to Ran Jang Singh in the year 1923. On September, 6, 1961 one Vernon Seth Chotia, son of Bhag Singh executed a power of attorney in California, U.S.A authorising Sardar Kartar Singh Chawla, an advocate of this Court, to sell the property and to execute the sale deed and present it for registration. This Power of attorney was witnessed by one Daniel E. Cooper. On the strength of this document, Sardar Kartar Singh Chawla executed the sale deed on May 30, 1963 in favour of the respondents in this appeal. He presented it for registration and the document was registered. The vendees thereupon sought to redeem the mortgage and applied under S. 9 of the Punjab Redemption of Mortgages Act, 1913. They deposited the entire amount due under the mortgage in the Collector s court and we understand that the amount is still lying there, because of the later proceedings from which this appeal arises. The Collector ordered the redemption of the mortgage. The Appellants who are the sons of the original mortgagee thereupon filed a suit under S. 12 of the Act on August 7, 1963. It is necessary to refer to their petition of plaint, not with a view to finding out what they stated there, but to see what reliefs they claimed in the suit. In pare 10 of the petition of plaint, the appellants as plaintiffs stated:

"The plaintiffs pray that a decree for declaration to the effect that the defendants are neither the owners of the above mentioned land nor they have any right to get the aforesaid land redeemed as per the orders of the S. D. O. Mukatsar exercising the powers of Collector, dated the 6th August, 1963 which is illegal and against law and the plaintiffs are not bound by it and neither the defendants are entitled to take possession of the aforesaid land in accordance with that order, be passed in favour of the plaintiffs against the defendants with costs."

2. While this suit was still pending and because of the challenge to the power of attorney on the ground that it had not been properly authenticated under the law, a fresh power of attorney was executed by Vernon Seth Chotia on March 23, 1964 in favour of Sardar Kartar Singh Chawla. The second power of attorney was subscribed and sworn to before the Notary Public in and for the County of Alameda, State of California The Clerk of the Court as required by the laws of California appended a certificate that the Notary Public had duly given the certificate in acknowledgment of the execution of the power of attorney by Vernon Seth Chotia. The endorsement of the Notary Public reads:

"Subscribed and sworn to before me this 23rd day of March 1964

Betly J. Botelko

Notary Public in and for the County of Alameda, State of California"

This second power of attorney was produced in the suit and the court of first instance ordered the dismissal of the suit, because it was of opinion that the transfer in favour of the redeeming mortgagors by Vernon Chotia was thereafter flawless. Appeal in the District Court and a second appeal filed in the High Court failed. This appeal has been brought by special leave.

3. Mr. Hardev Singh in arguing the appeal referred to the provisions of S. 85 of the Indian Evidence Act which provides that a 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 was duly executed and authenticated. He contended that authentication of the power of attorney had to be in a particular form, and that it was not sufficient that a witness should have signed the document, be he a Notary Public or any other. It ought to have been signed by the persons named in S. 85 and should have been authenticated properly. He admitted that there was