Sreenivasaraghava Iyengar V. Jainambeebee Ammal Et Al.,

1947 Present: Wijeyewardene and Dias JJ.

SREENIVASARAGHAVA IYENGAR, Appellant, and
JAINAMBEEBEE AMMAL, et al., Respondents.

152 Inty.-D. C. Nuwara Eliya, 1,589

Evidence - powers of attorney executed in India- proof of due execution - power of attorney executed by pardanishin lady behind purdah while Notary stood outside the purdah-Validity of it - Admissibility of copy of power of attorney- Evidence Ordinance, ss. 70,78 (6), 82,85.

A power of attorney executed by a pardanishin lady behind the purdah while the Notary stood outside the purdah can not be regarded as a power of attorney executed before the Notary for the purpose of attraction to itself the presumption under section 85 of the Evidence Ordinance.

Under section 70 of the Evidence Ordinance, the admission of a party to an attested document of its execution by himself is sufficient proof of its execution only against that party.

Where a power of attorney purported to have been executed in British India in the presence of two witness and a notary public-

Held that under section 85 of the Evidence Ordinance the document could be admitted without evidence as to the signature of the notary or the identity of the executant.

A document purporting to be a "true copy" of a copy of the original power of attorney copied by a registering officer in a book kept under the Indian Registration Act, 1908 is not in itself sufficient to establish the fact of execution of the original power of attorney when it does not come under section 85 or section 78 (6) of the Evidence Ordinance and when it is inadmissible under section 82.


APPEAL from an order of the district judge of Nuwara Eliya. The petitioner-appellant moved the district court of Nuwara Eliya for an order substituting in place of the plaintiffs. He pleaded that the plaintiffs had conveyed to him all their interests in the action by deeds S1 and S3. The deed S1 purported to have been appointed under the power of attorney S2 executed by the plaintiffs through their attorney who claimed to have been appointed under a different power of attorney. A copy of the second power of attorney purporting to be a true copy issued under the hand of the Sub-Registrar of Paranavaisam was produced and marked S4. The chief questions for consideration in appeal were (1) whether there was sufficient proof of the due execution of S2, and (2) whether S4 was admissible in evidence.

N. Nadarajah, K.C. (with him L. A. Rajapakse, K. C., and Cyril E. S. Perera), for the petitioner-appellant-The district judge held that the powers of attorney S2 and S4 were not duly proved. S2 and S4 are admissible without proof of due execution and authentication. Sections 74, 78 (6) and 76 of the evidence ordinance support that view. Clearly under section 85 of the evidence ordinance S2 is admissible without proof of due execution and authentication. S4 also becomes admissible under section 85 because S4 is a document executed and authenticated by an officer duly authorised under the Indian Registration Act of 1908

and acting under powers given by that Statute. The fact that these powers of attorney were not registered under Ceylon powers of attorney ordinance makes no difference as that ordinance is not exhaustive. Further, under section 82 of the Evidence ordinance S4 is admissible and must be presumed to be genuine. Under section 82, if the document is admissible without proof in England it is also admissible in Ceylon. See Kowla Umma v. Modiheen 1. in England both under the common law and Statute law, public or semi-public registers are admissible without proof of execution. See Phipson on Evidence pages 332,334 and 544; Vol Taylor on evidence sections 1591, 1592, 1593 and 1600; 8 and 9 Victoria , Chapter 183.

According to English authorities if the document is admissible in India it is also admissible in England. Foreign and Colonial Registers a

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