Back
2022 Supreme(Online)(MAD) 264
IN THE HIGH COURT OF JUDICATURE AT MADRAS
W.A.No.856 of 2021
RESERVED ON 23.09.2021
PRONONOUNCED ON 02.02.2022
CORAM
THE HONOURABLE Mrs. JUSTICE PUSHPA SATHYANARAYANA
and
THE HONOURABLE Mr.JUSTICE KRISHNAN RAMASAMY
Dr.Elizabeth Rajan
Daughter of late Mr.Thanarajan,
Residing at 621, 9th Avenue SW,
Rochester Minnesota
United States of America 55902
Rep. through her Power of Attorney
Holder Mr.Aliff Sultan Fazelbhoy,
Having his office address at:
M/s. ALMT Legal, 1st Floor,
Free Press House, 215 Free Press Journal Marg,
Nariman Point, Mumbai-400 021. ... Appellant
Vs.
1. The Inspector General of Registration,
No.100, Santhome High Road,
Chennai-600 028.
2. The Sub-Registrar-Tirupporur,
No.29, South Mada Street,
Thirupporur - 603 110.
3. Mr.Ranjit Jacob,
S/o. Mr. Thomas Jacob,
No.127, Harington Road,
Chennai - 600 031.
4. M/s.Oriental Hotels Ltd.
Registered Office at Taj Coromandel Hotel,
No.37, Nungambakkam High Road,
Nungambakkam, Chennai - 600 034. ... Respondents
For Appellant : Mr.AR.L.Sundaresan, Senior Counsel
for Mr.P.V.Balasubramaniam
for M/s.BFS Legal
For Respondents : Mr.D.Ravichander,
State Government Counsel for RR 1 and 2
Ms.Lita Srinivasan for R3
Mr.R.Subramanian for R4
For the Appellants/Petitioners: AR.L.Sundaresan, P.V.Balasubramaniam
For the Respondents: D.Ravichander, Lita Srinivasan, R.Subramanian
Section 85 of the Indian Evidence Act creates a mandatory presumption of validity for Powers of Attorney authenticated by foreign notaries; Section 14 of the Notaries Act does not restrict this. Writ jurisdiction is unavailable for stale claims where inordinate delay and laches exist.
Headnote:(A) Notaries Act, 1952 - Section 14 - Indian Evidence Act, 1872 - Sections 57 and 85 - Registration Act, 1908 - Sections 32 and 33 - Power of Attorney - Execution and Authentication - Notarial acts performed in foreign countries are recognizable in India regardless of reciprocal arrangements under Section 14 of the Notaries Act - Section 85 of the Evidence Act creates a mandatory presumption of authenticity for documents purportedly executed before and authenticated by a foreign Notary Public - Section 14 of the Notaries Act does not control or restrict the operation of Section 85 of the Evidence Act. (Paras 10, 14, 15, 19)
(B) Writ Jurisdiction - Laches and Delay - Discretionary relief under Article 226 of the Constitution of India - Extraordinary jurisdiction should not be exercised to unsettle settled matters after an unreasonable lapse of time - Delay defeats equity - Parties cannot approach the court after a significant delay to challenge past transactions without valid justification. (Paras 28, 29, 31)
Facts of the case:
The appellant challenged a sale deed executed in 2005 by her late father through a Power of Attorney executed in a foreign country. The appellant contended that the Power of Attorney was invalid because the foreign country was not a signatory to a specific international convention and lacked reciprocal arrangements under Indian law. The appellant initiated proceedings in 2019, fourteen years after the execution of the sale deed, seeking removal of the deed's entry from records.
Findings of Court:
The court held that foreign notarized documents are admissible under the Evidence Act with legal presumptions of authenticity. It concluded that the Act concerning foreign notaries does not override the evidentiary presumptions. Furthermore, the court emphasized that the appellant was guilty of inordinate delay and laches, and that the writ jurisdiction cannot be used as a substitute for civil remedies, especially when such remedies were available to the original owner during their lifetime.
Issues: Whether the Power of Attorney executed in a foreign country without reciprocal arrangements under the Notaries Act is valid, and whether the High Court should exercise its writ jurisdiction to cancel a sale deed after an unexplained delay of fourteen years.
Ratio Decidendi: Foreign notarial acts regarding Powers of Attorney are admissible under the Indian Evidence Act; reciprocity is not a mandatory barrier under the Notaries Act for such recognition. Additionally, courts will not exercise discretionary writ jurisdiction for stale claims marred by laches where an efficacious civil remedy was ignored.
Result: Writ appeal dismissed.
***
PRAYER : Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 26.08.2019 passed in W.P. No.25049 of 2019.
***
JUDGMENT
PUSHPA SATHYANARAYANA, J.
The interesting question that arises for consideration in this appeal is, whether a Power of Attorney executed outside India is in compliance with Section 14 of the Indian Notaries Act, 1952 and its authentication.
2. When the question as to whether the entry of the sale deed dated 18.02.2005 registered as Doc.No. 894 of 2015 should be removed, came up for consideration, the learned Single Judge dismissed the writ petition even at the admission stage itself holding that such a relief could not be granted in exercise of the jurisdiction under Article 226 of the Constitution of India and the writ petitioner filed the instant appeal questioning the said order.
3. The sale deed in dispute dated 18.02.2005 was executed by the writ petitioner/appellant’s father one, Mr.Dhanarajan, represented by his Power of Attorney. The said General Power of Attorney was executed in Malaysia on 05.05.2004. The appellant has challenged the sale deed, which has been registered by the Power of Attorney that was executed in Malaysia, contending that the Power of Attorney is contrary to the provisions of Section 14 of the Notaries Act, 1952 which does not include Malaysia in the reciprocal arrangements for recognition of notarial acts done by foreign notaries, since Malaysia is not a signatory to the Convention dated 05.10.1961. In other words, the registration of sale deed without a valid Power of Attorney is invalid and liable to be set aside.
4. The writ petitioner is none other than the daughter of the original owner Mr.Dhanarajan. The third respondent is his Power of Attorney and the fourth respondent is the purchaser under the sale deed. The writ petition is filed in the year 2019, after 14 years of the execution of the sale deed.
5. To determine the validity of the execution of a Power of Attorney outside India, in this case Malaysia, the relevant provision of law that need to be referred is Section 14 of the Notaries Act, 1952, which is reproduced below :
"14. Reciprocal arrangements for recognition of notarial acts done by foreign notaries. —If the Central Government is satisfied that by the law or practice of any country or place outside India, the notarial acts done by notaries within India are recognised for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognised within India for all purposes or, as the case may be, for such limited purposes as may be specified in the notification."
6. Sections 32 (c) and 33 of the Registration Act, 1908, are also relevant and the same read as hereunder :
"32. Persons to present documents for registration.— Except in the cases mentioned in sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,—
(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.
33. Power-of-attorney recognisable for purposes of section 32 — (1) For the purposes of section 32, the following powers-of-attorney shall alone be recognized, namely:—
........
(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:
Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:—
(i) persons who by reason of bodily infirmity are unable w
