SIRIMANE J.— Muthcflib v. Abbas
Present: Sirimane, J., Perera, J. and Wan asunder a, J.
M.K. A. MOHAMED MUTHALIB and another, Plaintiffs-
ALIYA MOHAMED SEYED ABBAS, Defendant-RespondentS. 20/76—D. C. Kandy L. 10201
Power of Attorney—Objection taken at trial to production thereof—Document executed in India and ex-facie duly authenticated—Evidence Ordinance, sections 85,4(2)—Whether presumption
under this section, applicable.
A power of attorney executed before a sub-registrar in Indiawas sought to be produced by the plaintiffs but was objected tounless its execution was proved. The learned District Judge madeorder admitting the document “ subject to proof The plaintiffsappealed from this order.
Held That a power of attorney which is ex-facie duly executedin India attracts the presumption laid down in section 85 of theEvidence Ordinance that is was so duly executed and authenti-cated.
Held further • That according to the provisions of the Indian Lawapplicable, a Sub-Registrar is a person duly authorised by law toexecute and authenticate a document such as a Power of Attorneyand therefore the document in the present case is ex facie dulyexecuted.
Case referred to :
Sreenivasaraghauxa Iyengar vs. Jainambeebee Ammal, 48 N.L.R. 49.
Appeal from an order of the District Court of Kandy.
C. R. Gunaratne, with J. C. Ratwatte, for trne plaintiffs-appellants-
C. Thiagalingam, Q.C., with R. Kanag Iswaran, for the defen-dant-respondent.
May 17, 1977. Sirimane, J.
The only question on this appeal is the admissibility in evidenceof the document P13 which is a power of attorney executed inIndia. The plaintiffs-appellants sought to produce this documentand it was objected to by the respondent unless its executionwas proved. The learned trial Judge admitted the document“subject to proof” and the plaintiffs appeal from that order.
The document P13 is the original of a power of attorneyexecuted before a sub-registrar in India and an examination ofthis document itself shows that it is ex-facie a duly executed andauthenticated document. Indeed even learned counsel for therespondent, who had himself appeared for the respondent in theoriginal Court, had stated there that ex-facie it appears to be aduly authenticated document. In these circumstances learnedcounsel for the appellants relies on section 85 of the EvidenceOrdinance which reads: —
8IRIMA3STE, J.—Muthalib v. Abbas
“The Court shall presume that every document purportingto be a power of attorney, and to have been executed. before,and authenticated by, a notary public, a person duly authorisedby law in that behalf, or any court, Judge, Magistrate,British Consul or Vice Consul or representative of His Majesty,or of the Governor-General of the Island, or of the Governmentof India, was so executed and authenticated.
He also relied on the case of Seenivasaraghawa Iyengar vs.Jainambeebee Ammand, 48 N. L. R. 49, where it was held thata power of attorney purported to have been executed inBritish India in the presence of two witnesses and a notarypublic could be admitted under section 85 of the Evidence Ordi-nance without evidence as to the signature of the notary or theidentity of these executant.
Learned counsel for respondent submitted that “ the notarypublic or person duly authorized by the law in that behalf ” insection 85 of the Evidence Ordinance refers to persons in SriLanka only, and that in any case it has not been shown that asub-registrar in India is a person duly authorized by law to exe-cute and authenticate a power of attorney. We have consideredthese submissions but we are unable, as regards the first sub-mission, to give such a restricted interpretation to that section.We respectfully agree with the decision in the case cited aboveby learned counsel for the appellants that a power of attorneywhich is ex-facie duly executed in India attracts the presumptionlaid down in section 85. As regards the second submission sec-tion 33(1)(a) of the India Registration Act 16 of 1908 provides
that a power of attorney executed before and authenticatedby a Registrar within whose district or sub districts the principalresides shall be recognized for registration under the Act andsubsection 4 of the same section provides that any power ofattorney mentioned in that section may be proved by its pro-duction without further proof when it purports on the face ofit to have been executed before and authenticated by the personor Court mentioned in that section. It would therefore be seenthat this Act recognises a power of attorney executed before asub-registrar as a valid and lawful document entitled to regis-tration and requiring no further proof apart from its produc-tion. For these reasons we are of the view that the power ofattorney P13 (which is the original) can be produced andadmitted without further proof under section 85 of the EvidenceOrdinance. In view of the presumption contained in that sectionthe Court will in terms of section 4 (2) of the Evidence Ordi-nance, regard P15 as duly proved unless and until it is disproved.
Somawathie v. Batesons Textile Industrie* Ltd.
We therefore, allow the appeal and set aside the order of thelearned District Judge admitting the document P13 “ subject toproof” and direct that it be admitted in terms of section 85 ofthe Evidence Ordinance. The appellants will be entitled to thecosts of this appeal from the respondent.
Pebera, J.—I agree.
Wanasundera, J.—I agree.