Nurun Nessa and others Vs. Babar Ali Bepari and others, 33 DLR (AD) (1981) 124

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

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain CJ
Ruhul Islam J
Badrul Haider Chowdhury J
 
Nurun Nessa and ors
…………………..Appellants
Vs.
Babr Ali Bepari and others
.............................. Respondents
 
Judgment
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)
 
Lawyers Involved:
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.)
 
JUDGMENT
K. Hossian CJ.
 
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:
 
"In Naggit vs. Iniff the Court of Appeal held that the old practice which had previously prevailed in the Court of Chancery was not abrogated by the Acts 15 and 16, Vict.o. 86 and that, as there appeared nothing in the Act to exclude it, an affidavit sworn before a notary public in the United States, where notaries public were authorised by law to administer oaths in any law procee­dings in that country, might be filed. "In the present case the evidence shows that the person before whom the affidavit has been sworn is a notary public and that in the State in question a notary public can administer an oath."
 
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.
 
Ed.