S.K. Subramaniam vs N.S. Ziyauddin Ahmed

S.M. Abdul Wahab, J.—The trial Court has rejected the power of attorney applying Section 85of the Indian Evidence Act. Of course, (sic) if the requirements u/s 85are present, the Court straightaway can presume that the document is a power of attorney. But, in other, cases, presumption cannot be there. However, that does not mean that the document has to be rejected. Here, in this case, P.W. 1 has stated that the power of attorney was typed at Madras, sent to Malaysia, signed by the father of the power of attorney Mr. Subramaniam and was sent back. The son is the power of attorney; he is the party to the document, he has produced it and he stated that it was executed by the father, by looking at the signatures of the father. This is sufficient to prove a document. If the petitioner is to challenge the same he could have cross examined and by examining other witnesses or producing other documents to show that, signature was not that of the father. That has not been done in this case. Another mistake committed by the lower Court is, that the document was not attested by the Commissioner of Oaths or by the Consul. This is also a mistake. A power of attorney does not require attestation. Section 2(21) of the Indian Stamp Act and Article 48there in show that the power of attorney should be stamped. If the stamp duty is sufficient, then Section 2(21) is satisfied. Further, it is not brought to my notice, as to what are the requirements to constitute the power of attorney. I have gone through Section 85of the Indian Evidence Act, Section 2(21) of the Indian Stamp Act and Article 48of the said Act and also Section 14of the Notaries Act. All these do not show that, there must be attestation and it must be by a particular individual. In the circumstances, the impugned order cannot be sustained. Hence it is set aside. Ex.A4 has been produced by the son and he has stated that his father has sent it after signing it. In my view, it is sufficient proof for producing a document. Therefore, this revision petition is allowed. Consequently, the C.M.P. No. 10978 is closed.