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2013 DIGILAW 594 (CAL)

Arabinda Sinha v. Amitava Sinha

2013-08-20

RASENJIT MANDAL

body2013
JUDGMENT Prasenjit Mandal, J. This application is at the instance of the plaintiff and is filed against the Order dated June 3, 2013 passed by the learned Civil Judge (Senior Division), 9th Court, Alipore in Title Suit No.1169 of 2011 thereby rejecting an application under Section 151 of the C.P.C. filed by the plaintiff/petitioner herein. The petitioner instituted the aforesaid suit for partition of the suit property as described in the schedule to the plaint and for accounts against the defendants. The defendants are contesting the said suit by filing a joint written statement. Subsequently, the plaintiff/petitioner herein amended the plaint and the opposite parties also filed an amended written statement. The opposite party no.3 executed a Power of Attorney in favour of the opposite party no.1 and as such, the opposite party no.1 is taking necessary steps for the opposite party no.3 as her constituted attorney. Subsequently, the plaintiff filed an application under Section 151 of the C.P.C. praying for expunction the written statement and the amended written statement filed by the opposite parties jointly contending, inter alia, that the Power of Attorney executed by the opposite party no.3 in favour of the opposite party no.1 was not proper. That application was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the question of execution of a Power of Attorney is the subject matter under consideration in this application. The copy of the said Power of Attorney has been annexed at page no.48 to the application. On perusal of the said Power of Attorney, it appears that the opposite party no.3 had executed the Power of Attorney in favour of the opposite party no.1 in respect of all matters concerning the settlement of the estate left by Birendra Kumar Sinha at 284, Prince Anwar Shah Road, Kolkata. The Power of Attorney includes the administration of the Probate Order of the Will issued on January 10, 2006 and she had given the authority to the opposite party no.1 to act on her behalf in all of the above-designated matters. The said Power of Attorney had been executed in presence of the Notary Public – New Jersey. Mr. The Power of Attorney includes the administration of the Probate Order of the Will issued on January 10, 2006 and she had given the authority to the opposite party no.1 to act on her behalf in all of the above-designated matters. The said Power of Attorney had been executed in presence of the Notary Public – New Jersey. Mr. S.P. Roy Chowdhury, learned Senior Advocate appearing for the petitioner, has contended that according to Section 85 of the Indian Evidence Act, there is a presumption of the execution of the Power of Attorney. But, the said presumption is rebuttable and on perusal of the said Power of Attorney, it appears that the said Power of Attorney was not authenticated and attested by the Notary Public/Judge/Magistrate and as such, the said Power of Attorney cannot be acted upon. He has also referred to the decision of Wali Mohammad Chaudhari & ors. v. Jamal Uddin Chaudhari reported in AIR 1950 Allahabad 524 particularly the paragraph no.3 and thus, he has submitted that the presumption as to execution of the Power of Attorney is rebuttable and since there is no attestation and authentication, the presumption of the Power of Attorney goes. So, the Power of Attorney should not be acted upon and in consequence, the written statement filed in respect of the opposite party no.3 should be expunged. He has also relied on the decision of M/s. Electric Construction & Equipment Co. Ltd. v. M/s. Jagjit Electric Works, Sirsa (Haryana) reported in AIR 1984 Delhi 363 and thus, he has submitted that unless the Power of Attorney bears any authentication regarding the manner of execution or the person executing the Power of Attorney, the presumption of execution should not be raised in favour of the Power of Attorney. He has also referred to the decision of M/s. Rudnap Export-Import v. Eastern Associates Co. & ors. reported in AIR 1984 Delhi 20 and thus, he has submitted that due execution and authentication of the document must be proved. Since the execution of the Power of Attorney in question had been done outside India, it must be authenticated by an Indian Embassy. Since nothing had been done, the Power of Attorney should not be acted upon. Mr. reported in AIR 1984 Delhi 20 and thus, he has submitted that due execution and authentication of the document must be proved. Since the execution of the Power of Attorney in question had been done outside India, it must be authenticated by an Indian Embassy. Since nothing had been done, the Power of Attorney should not be acted upon. Mr. Roy Chowdhury has lastly submitted that the written statement and the amended written statement filed jointly by the three defendants, at best, could be taken as filed by the opposite party nos.1 & 2. So, an appropriate order may be passed accordingly. Per contra, Mr. Srijib Chakraborty, learned Advocate appearing for the opposite parties, has contended that the Power of Attorney does not mean assignment of property according to the provisions of the Powers of Attorney Act, 1982 and as such, the said Power of Attorney need not require any registration. He has also referred to the decision of Chanan Kaur @ Channo v. Pakhar Singh & ors. reported in AIR 2004 Punjab and Haryana 121 and thus, he has submitted that if the Power of Attorney is executed by an Indian in a foreign country and attested by a Notary Public of that country, the presumption as to its validity is rebuttable, but, such document does not require registration at all. Having considered the submissions of the learned Advocates of both the sides and the decisions narrated above, I find that all the three opposite parties have filed the written statement jointly and subsequently, after amendment of the plaint, the amended written statement has also been filed jointly by the three opposite parties. Anyway, I find that the suit is for partition of the suit property and for accounts in respect of the property at 284, Prince Anwar Shah Road, Kolkata and the said Power of Attorney had been executed in New Jersey, U.S.A. on June 1, 2007 by the opposite party no.3 in favour of the opposite party no.1 empowering him to act on her behalf in all the matters relating to the said property. The said Power of Attorney was attested by a Notary Public as indicated therein. The said Power of Attorney was attested by a Notary Public as indicated therein. Thus, I am of the opinion that as soon as the Notary Public puts his signature with seal on the Power of Attorney, it amounts to the presumption that on being satisfied about the execution and authentication, the Notary Public had put his signature and seal thereon. Of course, such presumption is rebuttable, but, so far as the materials on record are concerned, there is no contrary material to rebut that presumption. Admittedly, the opposite party nos.1 & 2 are the two elder brothers of the opposite party no.3 and the Power of Attorney had been executed in favour of the eldest brother. Therefore, in my view, the learned Trial Judge has rightly observed in the impugned order that there is no occasion to disbelieve or dislodge the legality of the written statement so filed with the other co-defendants. The learned Trial Judge, in my view, has rightly addressed the issue. Therefore, the impugned order should be sustained. There is no scope of interference with the impugned order. Accordingly, the application is dismissed. However, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.