Notarization of power of attorney is a matter of procedure and raises the presumption of the authority of the person to institute the suit. Notarization raises the presumption as to its authentication and no more. “Merely because the power of attorney is not duly notarized does not mean that the concerned person was not authorized to institute the suit. Explaining this aspect, the Delhi High Court in Grafitek International Versus K.K. While a power of attorney executed before and authenticated by a Notary carries a presumption as to its due execution, the absence of such authentication would not render the document invalid. Where proof of authentication surfaces, the benefit of Section 85 has to be granted.” It is well settled that authentication would mean more than mere execution. Onus would thus lie on the opposite party to prove to the contrary. Works, if 2 conditions are satisfied, firstly the power of attorney being executed before a notary public and secondly it being authenticated by a notary public, a presumption would arise under Section 85 about the executant of the power of attorney. The use of the expression ‘shall presume’ shows that the section is mandatory and the court has to presume that all necessary requirements for the proper execution of the power of attorney were duly fulfilled before the notary public. Once a document is authenticated by a notary public, it will be presumed that the document was duly executed and was in order. “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. MANU/DE/7343/2007, the High Court of Delhi explained the effect of notarization as follows: 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 85 of the Indian Evidence Act reads: Under the provisions of Indian Evidence Act, a power of attorney executed before and authenticated by a Notary Public carries a presumption that it was properly executed. Under the said Act a notary is appointed by Central or State Government to do specified acts inter alia to verify, authenticate, certify or attest the execution of any instrument. An aspect of notarization is governed by provisions of Notaries Act, 1952. Yet it is not uncommon to notarize the execution of power of attorney. There is no specific mode prescribed for the execution of power-of-attorney. Is It Necessary to Notarize a Power of Attorney? “Power-of-attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it. It is a written instrument executed by a Principal to appoint an Agent to act for the Principal in one or more transactions. An implied authority is inferred from the circumstances of the case.Ī “power of attorney” is a mode of creating an express agency. An express authority, in turn, could be given by words spoken or written. The authority of an Agent may be expressed or implied. The person for whom such act is done, or who is so represented, is called the ‘Principal’.” An ‘Agent’ is someone employed to do any act for another or to represent another in dealings with third person/s. Power of Attorney: A Mode of Creation of AgencyĬhapter X of the Contract Act 1872 governs agency. A principal will authorize an agent as the attorney to avoid any inconvenience of any legal proceedings. The power of attorney is a legal process which is granted to the person to act as legal representative of the businessman. The execution of power of attorney is the one who delegates the business functions. It became necessary for the businessman to depend on others for getting his things done. In the world of business and industry, contracts of agreements play an important role. In this article, Smita Singh discusses all you need to know about the execution of power of attorney.
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