Introduction:

In the significant case titled Margret @ Thankam v. Joseph Mathew Chettupuzha [OP(C) No. 3213 of 2018], the Kerala High Court, through Justice K. Babu, has adjudicated on the evidentiary validity of a power of attorney executed in the United States of America, particularly Missouri, in the absence of India officially recognizing the US as a reciprocating country under the Notaries Act. The ruling comes as a pivotal interpretation of the interaction between Sections 57(6) and 85 of the Indian Evidence Act, 1872 (now Section 84 under the Bharatiya Sakshya Adhiniyam, 2023), and Section 14 of the Notaries Act, 1952. The Court observed that unless a foreign country is notified as a reciprocating country by the Central Government, a power of attorney executed before a notary public of that country does not enjoy a presumption of validity in Indian courts. This decision was passed in a civil revision petition filed by the defendant, Joseph Mathew Chettupuzha, challenging the trial court’s acceptance of a power of attorney executed in Missouri, USA by the plaintiff, Margret @ Thankam, for filing a suit seeking the execution of a release deed and partition of ancestral property. The High Court held that though the power of attorney was improperly accepted, this defect alone is not enough to reject the plaint, and allowed the plaintiff to regularize the procedural lapse by submitting a proper power of attorney. This case draws attention to the nuanced interpretation of cross-border notarizations and their legal acceptance in Indian judicial proceedings.

Arguments by the Petitioner/Defendant:

The petitioner-defendant, Joseph Mathew Chettupuzha, challenged the order passed by the learned trial judge who had earlier refused to strike off the plaint on procedural and legal grounds. The crux of the defendant’s argument centered around the procedural invalidity of the power of attorney which formed the foundation of the plaint filed by Margret @ Thankam. It was contended that the power of attorney was executed and authenticated in the State of Missouri, USA, but lacked recognition under Indian law since the United States of America, or more specifically the State of Missouri, is not a notified reciprocating country under Section 14 of the Notaries Act. Senior Counsel S.V. Balakrishna Iyer, appearing for the petitioner, relied on the provisions of Section 57(6) and Section 85 of the Indian Evidence Act to argue that Indian courts can only take judicial notice of the seal and acts of foreign notaries if the country where such notarization occurs is duly recognized through an official notification. The counsel emphasized that without such notification, no presumption of due execution or identification of the principal could arise under Indian law. The petitioner contended that the trial court had erred in allowing the case to proceed based on a power of attorney that lacked necessary statutory recognition, thereby compromising the evidentiary sanctity of the suit. Furthermore, the defendant urged the High Court to strike off the pleadings and reject the plaint altogether under the Civil Procedure Code on the grounds that the foundational document—i.e., the power of attorney—was unrecognized and therefore invalid in law.

Arguments by the Respondent/Plaintiff:

On the other hand, the respondent-plaintiff Margret @ Thankam, through her counsel M. Baiju Noel and his team, strongly opposed the contentions of the petitioner. The plaintiff based her defense on judicial precedents and an expansive interpretation of the Evidence Act. Specifically, the plaintiff’s counsel placed reliance on the 1980 judgment of the Allahabad High Court in Abdul Jabbar v. 2nd Additional District Judge, wherein it was held that no separate notification was required under Section 14 of the Notaries Act for a court to presume the validity of a power of attorney executed before a foreign notary. According to the plaintiff, the presumption under Section 85 of the Indian Evidence Act could be invoked as long as the document was properly authenticated, even if the foreign country was not specifically notified. The respondent also argued that such technicalities should not come in the way of the substantive rights of the parties and that any defect in the notarization process could be cured by leading further evidence during trial. The counsel emphasized the broader objective of justice and contended that the suit should be allowed to proceed on its merits rather than being dismissed on a preliminary technical ground. Further, the plaintiff argued that the power of attorney was genuine and executed in good faith and therefore should not be discarded merely due to a formal requirement under an ancillary statute.

Court’s Analysis and Judgment:

Justice K. Babu, after hearing both parties and analyzing the statutory provisions involved, delivered a detailed and nuanced judgment that underscores the importance of statutory recognition of foreign notarizations in Indian courts. The Court began its analysis by referring to Section 57(6) of the Indian Evidence Act, which mandates that the courts shall take judicial notice of the seals of notaries public only if the same are from a country recognized by the Government of India. The Court further clarified that this recognition must come via a specific notification under Section 14 of the Notaries Act, declaring that country to be a reciprocating country. The Court then turned to Section 85 of the Evidence Act (corresponding to Section 84 in the Bharatiya Sakshya Adhiniyam, 2023), which provides a presumption of proper execution of power of attorney documents provided they are authenticated by a notary or other authorized officer. However, Justice Babu emphasized that this presumption is contingent upon the prior satisfaction of Section 57(6)—i.e., that the foreign country must be officially recognized.

The Court categorically disagreed with the Allahabad High Court’s decision in Abdul Jabbar, holding that such an interpretation diluted the statutory safeguards enshrined in the Indian legal framework. According to the Kerala High Court, a plain reading of the relevant statutes makes it clear that only those notarizations that originate from notified reciprocating countries can enjoy the benefit of judicial presumption in India. Consequently, since the plaintiff failed to produce proof that the State of Missouri is a recognized reciprocating territory under Indian law, the power of attorney in question did not enjoy the presumption of validity under Section 85. Justice Babu observed that the trial court had erred in not insisting on such proof before accepting the document.

However, the Court also took a pragmatic view of the matter. It held that the procedural lapse in not producing a valid power of attorney was not sufficient to strike off the plaint or reject the suit at this preliminary stage. The Court emphasized that while the document was inadmissible in its current form, the plaintiff was at liberty to rectify this defect by producing a duly executed and recognized power of attorney. Hence, the High Court partially allowed the revision petition. It set aside the part of the trial court’s order which accepted the impugned power of attorney but refused to reject the plaint altogether. The Court permitted the plaintiff to continue the suit, subject to compliance with the procedural requirement of producing a valid power of attorney. This balanced approach ensured that procedural technicalities did not unduly prejudice the substantive rights of the plaintiff, while at the same time reinforcing the importance of statutory compliance in cross-border documentation.