PRESUMPTION AS TO POWER OF ATTORNEY

SECTION 85- A DETAILED ANALYSIS.

COMPILED BY

M.SUDHARSANA

III YEAR ‘A’ SEC

H13099

GUIDED BY

PROF. D.KANNAN

SCHOOL OF EXCELLENCE

IN LAW, CHENNAI.
Table of Contents
INTRODUCTION......................................................................................................................2

DEFINITION.............................................................................................................................3

ESSENTIAL ELEMENTS OF SECTION 85:..........................................................................3

Burden Of Proof.........................................................................................................................4

LANDMARK CASES THAT INTERPRETED SECTION 85.................................................5

Presumption As To Power-Of-Attorney Produced At The Time Of Presenting A Document

For Registration..........................................................................................................................6

Power-Of-Attorney Attested By Notary Public Of Foreign Country And Authenticated By

The Indian Financial Commission.............................................................................................6

Proof Of Statements In Power-Of-Attorney..............................................................................6

Authentication Of And Presumption Arising From Power-Of-Attorney...................................7

Authentication Must Be Clear, Specific And Decisive..............................................................8

Power Of Attorney Does Not Require Authentication..............................................................8

Presumption Is Rebuttable.........................................................................................................9

CONCLUSION..........................................................................................................................9

BIBLIOGRAPHY....................................................................................................................10
 INTRODUCTION
A power-of-attorney is a written contract establishing a relationship between and
principal and a special kind of agent, allowing that agent to act on the principal’s behalf. This
power may be revoked at any time. The law relating to power-of-attorney is dealt under the
Law of Agency as we thrive in a world with arrogation through surrogation. Thus the
document is a crucial authority indicating ownership and authority. The Indian Evidence Act,
under Section 85 undertook to provide for the presumption relating to the authenticity of a
power-of-attorney. The researcher undertakes to make a detailed analysis on this particular
legal provision.

DEFINITION
Section 3 of the Indian Evidence Act defines the term “Evidence” and it lays
down that there are two main forms of evidence- Oral and Documentary.

“Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry, such statements are called
oral evidence;
(2) all documents including electronic records produced for the inspection of the
Court, such documents are called documentary evidence. 

Chapter V of the Indian Evidence Act pertains to the nature of evidence with regard to
Documentary sources. Section 85 of the Indian Evidence Act reads thus,

PRESUMPTION AS TO POWERS-OF-ATTORNEY.

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, Indian Consul or Vice-Consul, or
representative of the Central Government, was so executed and authenticated.

Section 2(21) of the Indian Stamp Act defines the term “Power of Attorney” as follows:-

“Power-of-attorney” includes any instrument (not chargeable with a fee under

the law relating to court-fees for the time being in force) empowering a specified
person to act for and in the name of the person executing it.
 ESSENTIAL ELEMENTS OF SECTION 85:
Though Section 85 briefly explains presumption with regard to power-of-attorney,
The Judiciary has, in a wide plethora of cases, undertaken to interpret the same.

 A power-of-attorney purporting to have been executed before, and

authenticated by, any of the persons mentioned in this section must be
presumed to have been so executed and authenticated. If the document does
not purport to have been executed before, and authenticated by, any of the
persons mentioned in the section, there would, of course, be no presumption
as to its execution and authentication.1
 The execution of a power-of-attorney may be proved by the production of an
affidavit as to its execution made before a person competent to administer an
oath.2
 Authentication contemplated by the section does not merely mean attestation.
It means that the person authenticating has assured the fact of execution.3 The
Court shall take judicial notice of all seals of notaries public. Where a power-
of-attorney is given under the seal of a Notary Public, the court must presume
its proper execution before, and authentication by the Notary Public.4
 A registered power-of-attorney is admissible to prove agency under Section
85 of the Evidence Act.5
 Where power-of-attorney is neither executed before nor authenticated by
Notary Public, presumption under Section 85 cannot be raised.6

Burden Of Proof.
The burden of proof is on the person dealing with anyone as an agent, through whom he
seeks to change another as principal. He must show that the agency exists, and that the
agent had the authority he assumed to exercise, or otherwise that the principal is estopped
from disputing it.7

1
Ram Kailash Kunwari v. Lala Ishwari Saran, 1936 A 475: 163 IC 754.
2
In the goods of Sladen, (1898) ILR 21 Mad 492.
3
Wali Mohammad Choudhary v. Jamal Uddin Choudhary, AIR 1950 All 524.
4
Performing Rights Society Ltd v. Indian Morning Post Restaurant, 41 Bom LR 530.
5
Habinunnissa v. Musharaff Ali, 33 IC 651.
6
Electric Construction & Equipment Co. Ltd. V. Jagjit Electric Works, Sirsa, AIR 1984 Del 363.
7
Pole v. Leask (1863) LJ Ch 155.
 LANDMARK CASES THAT INTERPRETED SECTION 85
In wide paraphernalia of cases, the High Courts have had the opportunity to
interpret Section 85. The Courts have followed a very liberal approach to its
interpretation and the basis of their interpretation is the presumption that the Notary
Public acted in good faith.

 In Kulsumun-nisa v. Ahmadi Begum8, The Allahabad High Court had

occasion to consider the applicability of Section 85 of the Indian Evidence
Act. The documents executed by the Respondent were disputed in that case.
The power-of-attorney along with verifications has to be presumed to be true
under section 85 according to the Court.
 When the power-of-attorney has been attested by Public Notary, there is a
statutory presumption under Section 85 of Evidence Act that the power-of-
attorney was executed by the person by whom it purports to have been
executed and the person who executed the power-of-attorney was fully
competent.9
 In Jugraj Singh v. Jaswanth Singh10, the power-of-attorney attested by a
Public Notary was disputed on the ground that it did not show on its face that
the Notary had satisfied himself about the identity of the executant. Supreme
Court held that there was a presumption of regularity of official acts and that
the Notary must have satisfied himself in the discharge of the duties that the
person that was executing it was the proper person.
 In Punjab National Bank v. Khajan Singh 11 , the power-of-attorney in
favour of a bank, which had been duly attested, was rejected by the Learned
District Judge on the ground that the presumption under Section 85 of the
Indian Evidence Act was available to a particular class of power-of-attorneys
prescribed by the section and confined to its execution and authenticity alone.
The High Court, however, rejected the view holding that absence of proof of
resolution authorizing the executant to execute the power-of-attorney could
not be sustained and a presumption in favour of the attorney would arise under
Section 85.

8
AIR 1972 All 219.
9
Indian Bank v. Gawri Construction Udyog Ltd., 2011(9) AD (Del) 439.
10
AIR 1971 SC 761.
11
AIR 2004 P&H 282
 Presumption As To Power-Of-Attorney Produced At The Time Of Presenting A
Document For Registration.
Where an endorsement on a registered deed states that the person presenting the
document for registration held a special power-of-attorney, it must be presumed that the
power-of-attorney was a proper power.12 The authentication is not merely attestation, but
something more of a power-of-attorney bearing the authentication of a Notary Public or
an authority mentioned in this section is taken as sufficient evidence of the execution of
the instrument by the person who appears to be the executant on the face of it.13

Power-Of-Attorney Attested By Notary Public Of Foreign Country And Authenticated

By The Indian Financial Commission
Where the power-of-attorney executed in foreign country is attested by a notary
public of that country, and is authenticated by the Financial Commission of Punjab, a
rebuttable presumption has to be raised in favour of such general power-of-attorney. The
court is under an obligation to record that such a fact stands proved unless it is disproved.
No evidence on the contrary has been led by the plaintiff to disprove the power-of-
attorney.14 A reasonable presumption has to be drawn in case of a power-of-attorney s
executed in foreign country. Due execution and authentication of document of power-of-
attorney in favour of Yugoslav Company’s permanent delegate in Delhi has to be
presumed.15

Proof Of Statements In Power-Of-Attorney

The Madras High Court considered the scope of Section 85 in the case of Siva
Pratap Bhattadu v. Commissioner of Income Tax, Madras.16 According to the Madras
High court, the power-of-attorney can show that A was the agent of B, but any collateral
statement in it would not prove itself, nor can it be acted upon without anything more.
The power-of-attorney, which was filed by the agent, stated that it was a joint family. A

12
Kanhaya Lal v. National Bank of India Ltd. , AIR 1923 PC 114.
13
AIR 1972 All 219.
14
Chanan Kaur v. Pakhar Singh, AIR 2004 P&H 121.
15
Rudnap ExportImport v. Eastern Associates Co., AIR 1984 Del. 20.
16
AIR 1924 Mad 880.
statement in a power-of-attorney would not prove itself. Statements in power-of-attorney
are required to be proved like any other statements.

Authentication Of And Presumption Arising From Power-Of-Attorney

In Wali Mohammad Choudhary v. Jamal Uddin Choudhary, the original power-of-

attorney was disputed. The Court said

“The authentication is not merely attestation, but something more. It means that
the person authenticating has assured himself of the identity of the person who has
signed the instrument as well as the fact of the execution. It is for this reason that a
power-of-attorney bearing the authentication of a Notary Public or an authority
mentioned in Section 85 is taken as sufficient evidence of the execution of the
instrument by the person who appears to be the executant on the face of it. The
presumption is, no doubt, rebuttable. But unless rebutted, the presumption stands,
and the document can be admitted in evidence as a document executed by the
person alleged to have executed it without any further proof.”

Authentication by a Notary Public is a solemn act performed by the notary public

whose duty is to ensure that the executant is the person before him and is identified to
his satisfaction. Once a document is authenticated by a notary public it will be
presumed that the document was duly executed and was in order. The use of
expression “shall presume” shows that the section is mandatory and the court has to
presume that all the necessary requirements for the proper execution of the power-of-
attorney were duly fulfilled by the notary public. 17 Further if two conditions are
satisfied:

 The power-of-attorney being executed before a notary public.

 It being authenticated by a Notary Public,
a presumption would arise under Section 85 of the Indian Evidence Act about
the executant of the power-of-attorney.

17
Kamla Rani v. Texnaco Ltd., AIR 2007 Del 147.
Hence, the onus lies on the opposite party to prove the contrary and it is well-settled
law that the authentication surfaces, benefit of Section 85 of the Indian Evidence Act
has to be granted.18

Authentication Must Be Clear, Specific And Decisive

In Mohanshet Purushottam Gujar v Mrs. Jayashri Vasantrao
Mahagaonkar19, the Bombay High Court had occasion to consider the scope anf the
amplitude of Section 85 of the Indian Evidence Act. The Court took note of the fact
that its well settled that authentication is more than mere execution before one of the
persons designated in Section 85. According to the Court, Section 85 contains a
presumption which may operate in favour of the party relying on a document and to
the prejudice of the party alleging that the document is not a genuine one. For the
purpose of such presumption to operate, the authentication must be clear, specific,
and more decisive. If there is the slightest doubt, then the court must loathe to rely on
the presumption contained in Section 85 and must equally loathe in applying such
presumption in favour of the party relying on the document.

When in a case, the Magistrate uses rubber stamp to authenticate a thumb

impression on a power-of-attorney and, as far as the identity of the executant is
concerned, puts his signature on the basis of identification made by an advocate, the
presumption under Section 85 for exhibiting the power-of-attorney should not have
been drawn.

Power Of Attorney Does Not Require Authentication

An attestation by a Notary Public is merely a manner of securing an authentication
but the power-of-attorney itself does not require even to be attested. If the Plaintiff-
Branch Manager was producing the document in original and he was stating that he
had the authority to represent the bank, it ought to have been taken as sufficient proof
for upholding the authority for institution of the suit. The dismissal of the suit by the
courts that the Branch Manager did not have the competency to institute the suit was
erroneous.20
18
16 ILR Cal 776.
19
AIR 1979 Bom 202.
20
Union Bank of India v. M/s Veejay Enterprises, 2014(1) PLR 246.
 Presumption Is Rebuttable
The Kerala High Court has also occasion to consider the effect and implication of
Section 85 of the Indian Evidence Act n the case of Damodaran Suran v. Keshavan
Meenakshy.21 A power-of-attorney bearing the authentication of a Notary Public or an
authority mentioned in Section 85is taken as sufficient proof of the execution of the
instrument by the person, who appears to be the executant on the face of it. The
presumption, no doubt, is rebuttable. But unless rebutted, the presumption stands and the
document can be admitted.

CONCLUSION
It can be understood that Section 85 has been interpreted and used to its maximum
benefit and it can be seen that the liberal construction of the provision has aided in
protecting the rightful owners while executing their right and in a wide catena of cases,
the Courts have widely interpreted the provision to provide a window of opportunity for
the owners and also about the ubberimma fidae placed over the Notary Public. Thus, the
researcher concludes that Section 85 is a testament to the rights of owners and is a helpful
tool in the operation of the Power Of Attorney Act.

BIBLIOGRAPHY

BOOKS:

21
1983 KLT 1013.
LAW RELATING TO POWER OF ATTORNEY BY S.PARAMESWARAN AND
S.K.SARKARIA

LAW OF EVIDENCE BY AVTAR SINGH

EVIDENCE LAWS, VOLUME 1, BY SARKAR

JOURNALS REFERRED

MADRAS LAW JOURNAL

LEGAL DATABASES REFERRED

www.indiakanoon.org

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