Report No. 69

Chapter 40

Miscellaneous Presumptions as to Documents

Sections 85 to 89

Introductory

40.1. Apart from presumptions as to public documents and records or memorandum of evidence, statements or confessions, with which we have so far been mainly concerned, there are other provisions in the Evidence Act providing for presumptions as to certain documents. Sections 85 to 89 contain these provisions. Section 90 dealing with presumptions as to documents thirty years old-otherwise known as "ancient documents"-will require separate discussion, in view of its importance.

Section 85

40.2. Introductory.-

A presumption as to powers of attorney is the subject-matter of section 85, under which the court shall presume that every document purporting to be a power of attorney and to have been executed before and authenticated by the authorities or persons specified in the section was so executed and authenticated. The authorities and persons specified in the section are-a rotary public, or any Court, judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government.

40.3. Principle.-

The principle underlying the section is this. The fact of execution before, and authentication by, persons of the position and office of those in the section mentioned, affords a guarantee and prima face proof of such execution and authentication respectively.

The Act does not define what is a power of attorney.

40.4. Other definition.-

Wharton1 defines a power of attorney as "a writing given and made by one person authorising another, who in such case, is called the attorney of the person (or donee of the power), appointing him to do any lawful act in the stead of that person, as to receive rents, debts, to make appearance and application in court, before an officer for registration and the like. It may be either general or special i.e., to do all acts or to do some particular act". Stroud2 defines it as an authority whereby one is "set in turn, stead or place" of another to act for him.

In an English case,3 Coltman, J. observed as follows-

"Where one is authorised in writing, on behalf of another and in his name, to do an act, that is an appointment of an attorney within the meaning of the Stamp Act."

The definition in the Indian Stamp Act4 also lays emphasis on the use of the name of another person.

1. Wharton Law Lexicon, 1953.

2. Stroud Judicial Dictionary, (1953), p. 2257.

3. Walker v. Rommett, (1896) 135 ER 1181.

4. Section 3, Indian Stamp Act.

40.5. Powers of Attorney Act, 1882.-

At this stage, we may mention that the Central Act on the subject of powers of attorney1 does not contain a definition of the expression "powers of attorney". In fact, that Act does not purport to deal with the subject of powers of attorney in a comprehensive manner. It is concerned only with certain aspects thereof. The only provision of relevance to the law of evidence is section 4.

1. The Powers of Attorney Act, 1882.

40.6. Registration of powers of attorney in the High Court.-

Section 4 of the Powers of Attorney Act, 1882, provides that a power of attorney may be deposited in the High Court with an affidavit verifying the execution of the power of attorney, and a copy may be presented at the office and stamped as "certified copy". Such certified copy will, by virtue of the section, be sufficient evidence of the contents of the deed. We are making a separate report on the Act.

40.7. Registration Act.-

There are special provisions in the Registration Act1 in relation to powers of attorney which we need not discuss for the present purpose.

1. Sections 33 to 35, Indian Registration Act, 1908.

40.8. Effect of the section.-

The presumption about authentication under section 85 implies that the person authenticating has assured himself of the identity of the person who has signed the instrument as well as of the fact of execution. The effect, therefore, is that a power of attorney bearing the authentication of a Notary Public (or of any other authority mentioned in section 85) is taken1 as sufficient evidence of the execution of the instrument by the person who appears to be the executant on the face of it. It was so held in an Allahabad case2. This proposition was laid down in an earlier Calcutta case also3, and in a Bombay case4. Change not needed.-The above discussion does not disclose any need for changing the section.

1. Haggitt v. Iniff, (1855) 24 LJ Chancery 120.

2. Wali Mohammed v. Jamaluddin, AIR 1950 All 524 (Agarwala, J.).

3. Goods of Mylne (in re:), 1905 ILR 33 Cal 625.

4. Performing Right Society Ltd. v. Indian Morning Post Restaurant, AIR 1939 Born 347.

Section 86

40.9. Introductory.-

Under section 86, the court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of India or of Her Majesty's dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records. An officer who, with respect to any territory or place not forming part of India or Her Majesty's dominions, is a Political Agent therefor as defined in section 3 (clause 43), of the General Clauses Act, 1897, shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.

40.10. Other mode of proof.-

While certain presumptions as to certified copies of foreign judicial records are dealt with in section 86, it may be noted that such proceedings can also be proved by an official of the Court, speaking to what took place in his presence,1 since section 86 does not exclude other proof.2

No change.-No changes are needed in the section.

1. Heeranund v. Ramgopal, 1900 ILR 27 Cal 639 (648) (PC).

2. Krishna Rai v. Vallabhdas, AIR 1929 Born 24 (30).

40.11. Scope of the section.-

Under section 87, the court is permitted to make certain presumptions as to certain books, maps and charts. The books are those to which it may refer for information on "matters of public or general interest". The maps and charts are those which are published and "the statements of which are relevant facts". The book, map or chart must be produced for inspection. The presumption is as to genuineness, and not as to accuracy. In this respect, this section is narrower than a few other sections for example, sections 83 and 86-where the presumption extends also to accuracy.

40.12. Other sections compared.-

Under an earlier section-section 571-in all cases when the court is called upon to take judicial notice of a fact, and also in all matters of public history, science or art, the court may resort for its aid to appropriate books or documents of reference.

1. Section 57, penultimate clause.

40.13. When the Court takes judicial notice by reference to such books or documents, then, under section 87, the court may presume that such books were written and published by the person by whom and at the time and place, by whom, or at which, they purport to have been written or published.

40.14. Further, under another section1, statements of facts in issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans, made under the authority of Government, as to matters usually represented or stated in such maps, charts, or plans, are themselves relevant facts.

1. Section 36.

40.15. Accuracy when can be presumed.-

It has been pointed out above that section 87 raises no presumption of accuracy. At the same time it should be noted that, in a proper case, accuracy can be presumed under the general provision contained in section 114. In the case, however, of maps and plans purporting to be made by the authority of Government the Court must1 presume that they were so made, and that they are accurate, but maps or plans made for the purpose of any cause„ that is, maps specially prepared for that purpose and with a view to their use in evidence must be proved to be accurate. This is by virtue of section 83.

1. Section 83.

40.16. It may be noted that a map or plan is a "document"1, and the provision in section 90, relating to ancient documents, applies to maps also. In the case of any map thirty years old, then, the Court may presume that the signature and every other part of it which purports to be in the handwriting of any particular person is in that person's handwriting.

1. Section 3, definition of 'document' illustration.

40.17. Two minor changes are required in the section. The first is that plans should be added1, as in section 36. The second is that the portion relating to statements of fact, should be expressed more clearly. We recommend that the section should be suitably amended to effect these two changes.

1. See discussion relating to section 36.

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