Recognition of foreign notarial acts requires proof of reciprocity under the Notaries Act; without it, presumption of due execution under the Evidence Act does not apply.

JUDGMENT :

K. BABU, J.

1. The challenge in this Original Petition is to the order dated 15.11.2018 in I.A No.3455/2018 in O.S No.179/2018 passed by the Additional Subordinate Judge's Court-III, Ernakulam, an application filed by defendant No.1 in the suit under Order VI Rule 16 and Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, seeking to strike out the pleadings and reject the plaint.

2. The learned Trial Judge rejected the application as per the impugned order. The plaintiff instituted the suit seeking to direct defendant Nos.1 and 2 to execute a release deed in respect of plaint 'A' schedule property in favour of the plaintiff in terms of the family arrangement, partitioning the plaint 'B' schedule property and to declare gift deed No.448/2014 of SRO, Ernakulam as void.

3. The defendants resisted the suit denying the alleged family arrangement and contended that defendant No.1 had validly executed the gift deed.

4. The plaint was filed by the Power of Attorney Holder of the plaintiff. A copy of the power of attorney is produced and marked as Ext.P1. The power of attorney was apparently executed and authenticated at St.Louis County, a place in the State of Missouri in the USA on 13.04.2018. In I.A No.3455/2018, defendant No.1 raised the following contentions:

(i) There is nothing to show that the principal (Plaintiff) was identified before the notary public. There was no identification.

(ii) The notarial act apparently evidenced by Ext-P1 cannot be recognised in India, the reason being that it is not shown that the State of Missouri is a reciprocating country, in that, it recognises the notarial acts done in India. Nor there is any notification under Schedule 14 of the Notaries Act, 1952, recognising the State of Missouri to be a reciprocating country, and therefore, the notarial act done in the said country is not recognisable in India.

(iii) That the provisions of the Stamp Act and the Registration Act are not complied with. The document is not stamped under Sec.18 of the Kerala Stamp Act.

5. I have heard Sri.S.V.Balakrishna Iyer, the learned Senior Counsel appearing for the petitioner and the learned counsel for the respondent.

6. The learned Senior Counsel did not press the contentions (i) and (iii). The learned Senior Counsel submitted that contention (iii) is sustainable and the Trial Court ought to have insisted for proof of reciprocation insofar as the power of attorney is concerned under Section 14 of the Notaries Act.

7. The learned Senior Counsel submitted that the Court can apply the presumption under Section 85 of the Evidence Act and make use of Section 57 (6) of the Evidence Act only if the country where the power of attorney was executed is a reciprocating country as provided in Section 14 of the Notaries Act. The learned Senior Counsel further submitted that if it is a reciprocating country, or if there is a notification under Section 14 of the Notaries Act, recognising the fact of reciprocity, the presumption of due execution and authentication can be drawn under Section 85 of the Evidence Act and the official seal of the notary public can be taken to be proved under Section 57 (6) of the Evidence Act. The learned Senior Counsel also submitted that in the present case, there is neither evidence that the State of Missouri is a reciprocating country nor there is proof of notification under Section 14 of the Notaries Act.

8. The learned Senior Counsel relied on 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.

9. The learned Senior Counsel submitted that a Court can proceed to conclude that there was a proper identification in the case of a document executed in a foreign country before a notary public, only if such country is a reciprocating country enabling the Court to draw the presumption under Section 85 of the Evidence Act.

10. The learned counsel for the plaintiff submitted that the presumption under