Case No: Civil Appeal No. 100 of 1979
Judge: Kemaluddin Hossain,
Court: Appellate Division ,,
Citation: 33 DLR (AD) (1981) 124
Case Year: 1981
Appellant: Nurun Nessa and others
Respondent: Babar Ali Bepari and others
Subject: Power of Attorney,
Delivery Date: 1980-8-27
Kemaluddin Hossain CJ
Ruhul Islam J
Badrul Haider Chowdhury J
Nurun Nessa and ors
Babr Ali Bepari and others
August 27, 1980.
Power of Attorney
A power of attorney executed as required by the Registration Act confers power on the attorney to act.
A power of attorney executed in terms of Registration Act or under other provisions of law which confers a valid power on the attorney to act as an agent for the principal does not require registration except that its authentication under the law is necessary. ………..…. (5)
M.G. Rabbani, Advocate, instructed by B.C.Panday, Advocate-on-Record.—For the Appellants.
S.M. Huq, Advocate-on-Rccord.—For the Respondents 3-7 and 9-11.
K.A. Bakr, Attorney-General, instructed by B.Hossain, Advocate-on-Record.—Under Rule 1, Order XLV S.C. (A.D.) Rules, 1973.
S.R. Pal, Senior Advocate. — Amicus Curiae.
Civil Appeal No. 100 of 1979.
(From the Judgment and Decree dated 19.3.76 passed by the High Court Division in S. A. No. 973.)
This appeal is by the heirs of the original plaintiff and the question of law involved is of some public importance in that, whether a power of attorney executed in India and authenticated by a Magistrate in India and not authenticated by any authorised officer of Diplomatic Mission of the then Pakistan in Calcutta is a valid document in Bangladesh which could be acted upon. Facts in short are, that the plaintiff Haji Abdul Karim migrated to the then East Pakistan in the latter part of 1357 B.S. The suit lands originally belonged to Bhattacharjees who orally settled the 'Ka' schedule lands and another plot of land to the plaintiff's son Abdul Jabbar and allowed the plaintiff to possess the 'Kha schedule land by an amalnama dated 20th Bhadra, 1359 B.S. and that on 19.2.58 Abdul Jabbar sold the land to one Siman Sardar from whom the plaintiff purchased on 22.9.58. Bhattacharjees also made a contract to sell the 'Kha' schedule and other lands to the plaintiff, but thereafter the Bhattacharjees went to India and as they could not return, by a General Power of Attorney dated 9.4.56 (Ext.4) they appointed one Ansaruddin Biswas as their attorney who subsequently executed a deed of sale in favour of the plaintiff on 8.10.56 and that the plaintiff thus became the owner of the suit lands and was possessing it, but it having been wrongly recorded in the name of the defendant-respondents, he was compelled to file the suit.
2. The defendant-respondents 1 to 11 excepting the respondent 2 contested the suit by filing a joint written statement admitting that the suit lands belonged to Bhattacharjees; but alleging, inter alia, that the Bhattacharjees settled the suit lands to the defendants 1, 3 and 4 who thereafter sold a portion thereof to the other contesting defendants and that they were possessing the land.
3. With regard to the 'Ka' schedule land, the plaintiff claimed that he took settlement from the Bhattacharjees by Exts 1 and 1 (a) which have been concurrently held by the Courts below that they were invalid and the plaintiff did not acquire any title to them and no leave was granted on the issue.
4. As regards to the 'Kha' schedule lands all the three Courts below have non-suited the plaintiff on the ground that his claim to the land on the basis of the Kabala Ext. 3 e), and the power of attorney Ext. 4 on the basis of which the Kabala was granted, did not confer legal title to the plaintiff. The first appellate Court reversed the finding of the trial Court but on the legality of the document both the first appellate Court and the High Court Division held that the Kabala in favour of the plaintiff was invalid since the power of attorney was invalid as it was not registered and also because the authentication of the signature before the Magistrate at Alipore was not a legal authentication, since it was not authenticated by an officer of the Diplomatic Mission. It was revalidated on payment of required stamps.
5. The point arising in this appeal has been set out earlier. Before dealing with the basic question an observation made by the learned Single Judge of the High Court Division to which the learned Attorney- General has taken exception to as a correct proposition of law requires to be mentioned. It has been observed by the learned Judge that the power of attorney is not a document which requires to be compulsorily registered under the law, but he further says if such power of attorney empowers a person to execute a deed of sale of any kind of transfer or sale of immovable property that power of attorney requires registration under the law, The latter proposition has no foundation in law. This observation is not legally tenable as a power of attorney executed in terms of Registration Act or under other provisions of law which confers a valid power on the attorney to act as an agent for the principal does not require registration except that its authentications under the law is necessary. The contention of the learned Attorney General is upheld.
6. We now come to the discussion on the question involved in this appeal. The question is; whether a power of attorney authenticated before a Magistrate at Alipore in India is admissible in Bangladesh as a valid power of attorney. On this question we have had the advantage of hearing the learned and able argument of Mr.S.R. Pal who appeared to assist the Court as an Arnicas Curiae at our request. We got also able assistance from the learned Attorney-General.
7. For the validity of a power of attorney we are to refer to some of the provisions of section 33 of the Registration Act, 1908 and sections 56, 78(6) and 85 of the Evidence Act, The Notaries Ordinance, 1961 and Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (Act XXI of 1948). The relevant provisions of these Acts may be indicated in substance.
8. Section 33 of the Registration Act says that for the purposes of section 32 the power of attorney shall alone be recognised and here we exclude all other excepting which is relevant for our purpose and that is in clause (c) which says if the principal at any time aforesaid does not reside in Bangladesh a power of attorney executed before an authenticated Notary Public, or any Court, Judge, Magistrate, Bangladesh Consul or Vice Consul or representative of the Central Government? The other provisions need not be mentioned. The rule next that calls attention is sub-section(4) which says; any power of attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court herein-before mentioned in this behalf.
9. We now refer to some of the relevant provisions of the Evidence Act 1872. Section 85 says, the Court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by a Notary Public, or any Court, Judge, Magistrate, Bangladesh Consul or Vice-Consul or representative of the Central Government was so executed and authenticated. Along with this we are to refer to section 57(6) of the Evidence Act. which says, that the Court shall take judicial notice of all seals of English Courts, the seals of all the Courts in Bangladesh and all the Courts out of Bangladesh established by the authority of the Central Government or the Government representative, the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all .seals which any person is authorised to use by any Act of Parliament of the United Kingdom or other Act or Regulation having the force of law in Bangladesh. Another provision of the Evidence Act that requires to be mentioned is section 78(6) which says, that public document of any other class in a foreign country may be proved by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a notary public, or of a Bangladesh Consul or diplomatic agent, that the copy is duly certified by the Officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.
10. We may now take the salient provisions of the Notaries Ordinance, 1961. Section 14 relates to the notarial acts done to the foreign country and it says, that if the Central Government is satisfied that by the law or practice of any country or place outside Bangladesh the "notarial acts done by notaries within Bangladesh are recognised for all or any limited purposes in that country or place the 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 such country or place shall be recognised within Bangladesh for all purposes or, as the case may be, for such limited purposes as may be specified in the notification.
11. A salient provision from the Diplomatic and Consular Officers (Oaths and Fees) Act, 148 may now be mentioned and it is section 3 and the substance of which may be set out. It says, every diplomatic or consular officer of Bangladesh exercising his functions in any foreign country or place, or any such diplomatic or consular officer of a foreign country as in writing authorised in this behalf by the Government in relation to any foreign country or place, may, in that country or place, administer any oath or affirmation and lake any affidavit and also do any notarial act which any notary public may do within the territory of Bangladesh, and every such oath, affirmation, affidavit and notarial act administered, sworn or done by or before any such person shall be as effectual as if duly administered, sworn or done by or before any lawful authority in any part of Bangladesh. The section further provides in sub-section (2) that, any document purporting to have affixed, impressed, or subscribed thereon or thereto, the seal and signature of any person 'authorised by this section to administer an oath in testimony of any oath, affirmation, affidavit, or act being administered, sworn or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of the person, or of the official character of that person.
12. These are all the relevant statutory provisions on the subject. A combined reading of all the relevant provisions does indicate that where there is reciprocal arrangement for re organisation of notarial acts done by foreign notary as contemplated in section 14 of the Notaries Ordinance, a power of attorney, which is one of the acts of Notaries of foreign country, will be recognised in Bangladesh. There is no difficulty so far as the application of this section is concerned but as we understand from the argument of learned Attorney-General who has told us that he has been informed by the Government that Bangladesh at present does not have any reciprocal arrangement with any foreign country as contemplated in section 14 of the Notaries Ordinance, 1961. We have further been told that notarial acts duly attested by the Bangladesh Missions situated outside Bangladesh are recognised within Bangladesh.
13. So far as the second part of the information is concerned it is partly in conformity with section 3 of Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. But this does not fully answer the question. The question is if a notarial act is done in a foreign country by a foreign notary, whether that is valid as power of attorney to be acted upon in Bangladesh. We have already got in section 14 of the Notaries Ordinance, 1961 that if there is reciprocal arrangement then by reference to section 14 of the Ordinance, 1961 and section 33 of the Registration Act, those notarial acts will be valid and the documents admissible in Bangladesh.
14. If there is no reciprocal arrangement question is whether by reference to section 14 of the Notaries Ordinance, 1961 it could be said foreign notarial acts will not be recognised as a valid act or the document. A reading of section 14 does not indicate any such prohibition or exclusion. It is a permissive section and lays down the conditions of acceptance of foreign notarial acts. If the conditions set out in the section are fulfilled, that is reciprocal arrangement arrived at by the Bangladesh Government with the foreign Government under the conditions set out in the section, the notarial acts in the reciprocating countries will be recognised in Bangladesh. There being no express prohibition in section 14, we can look to other laws in Bangladesh to find whether the notarial acts in foreign countries could be acted upon.
15. The answer to this is section 85 of Evidence Act and clause (3) of section 33 of the Registration Act. It is to be observed that the Law of Nations recognises foreign notarial acts. On foreign notarial acts two decisions may be cited which may be of some assistance for our purpose. In the case of A.J. Primorose 16 Cal. 776, it has been held that where a power of attorney executed in Scot and but which was not authenticated by any of the authenticators shown in section 85 of the Evidence Act it was not admissible in an Indian Court. It has been clearly held that power of attorney which was executed before and authenticated by a Notary Public or any Court or Judge, Magistrate could be accepted, but it was done before a person not mentioned in sec. 85 of the Evidence Act and so it could not be accepted. This view by its contrary formulation has asserted the affirmative provision of sec. 85 of the Evidence Act. We may refer to an English decision of about hundred years back relating to the notarial acts done in a foreign country in Cook Vs Willby, 25 Ch. Division 769. In that case an affidavit was sworn in foreign parts out of Her Majesty's dominions before a notary public and that the nearest of Her Majesty's consuls or vice-consuls was resident at a distance of 150 miles from the place where the affidavit was sworn and the question arose whether it was admissible. An earlier decision of an affidavit sworn in the United States was cited and on the authority of the said decision, it was held to be admissible. The relevant passages merit quotation:
16. These two decisions therefore clearly establish the fact that notarial act in foreign country having no reciprocal arrangement can be accepted into evidence, if there is evidence to show that the person before whom the notarial act was done was notary public and that the state in which the notarial act was done authorised him by law to do the notarial acts. These two decisions therefore, show that apart from the requirement of section 14 of the Notaries Ordinance, 1961, if a notarial act takes place in a foreign country, the person asking the Court to accept the notarial acts done in a foreign notary can do so by showing that the law of that country authorised notarial acts to be done by Notaries as they are so done in Bangladesh and by proving the authentication made by the Notary Public. We, therefore, find that the notarial acts done in foreign country can be accepted in this country provided the conditions set out are satisfied.
17. Mr. K.A, Bakr, learned Attorney-General has cited two decision, one is Bengal Friends & Co. Vs Gour Benode Shaha, (1969) 21 D.L.R (SC) 353—PLD 1969 S.C. 477 which deals with the manner of proving certified copies of foreign judgments, and Sarder Singh vs. Pissumal H, Bankers AIR 1958 Andhrara Pradesh, 107 where it has been held that where a power of attorney registered in Pakistan and carrying endorsement of Registrar of that country is produced in India, the presumption of section 85 does not arise. These two decisions are not very relevant to the question before us.
18. We now turn to the facts of the present case. It appears that the power of attorney was authenticated before a Magistrate at Alipore, India and it was produced before the Court in Bangladesh after validating it with local stamps. The Courts below have held that it is not admissible. The manner in which it has been produced no doubt supports the conclusion of the Court below, but not with the law on the subject. It being a notarial act in a foreign country where there is no reciprocal arrangement, it could he proved in the manner we have set out above, namely, that the Magistrate at Alipore by the law or practice having the force of law in India, is authorised to authenticate power of attorney and that it was duly authenticated by the Magistrate. This is a matter of evidence. The person seeking to prove may take recourse to the relevant provisions of the law to discharge this onus of proof.
In this view of the matter, we allow the appeal and set aside the orders of the High Court Division and that of the Court of Appeal below and remit the case back to the first appellate Court on the question of title to the (Kha) schedule lands of the plaint. The parties will have opportunity to prove the power of attorney in the manner indicated above and in accordance with law, we, however, make no order as to costs.