WALI MOHAMMAD CHAUDHARI Vs. JAMAL UDDIN CHAUDHARI

JUDGEMENT

(1.) This is a defendant's appeal. The defendants are brothers of Jamaluddin Chaudhari, plaintiff respondent. Jamaluddin lives in Dutch Guiana. The fourth brother Shahabuddin filed a suit on his behalf for possession over his one-fourth share in the family property described at the -foot of the plaint. Shahabuddin claimed that under a power of attorney executed by Jamaluddin, he had been given power to institute the suit on his behalf. The suit was decreed by both the Courts below. The defendants, brothers of Jamaluddin, have filed this second appeal.

(2.) During the pendency of this second appeal, the appellants filed a compromise executed by Tajammul Husain as general attorney for Jamaluddin plaintiff respondent. This compromise was sent to the lower Court for verification. It was duly verified by Tajammul Hussain who produced the power of attorney purporting to have been executed by Jamaluddin. Shahabuddin objected to this compromise on the ground that Tajammul Husain had no authority to enter into a compromise on behalf of Jamaluddin. The original deed of attorney has been filed before me, a copy of which was filed in the Court below. This is dated 4th March 1949, and appears to have been signed by Jamaluddin and signed and authenticated by a notary public.

(3.) Under Section 85, Evidence Act, "'there is a presumption 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, British Counsel or Vice-Counsel or representative of Her Majesty or of the Central Government, was so executed and authenticated. 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 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, no doubt, is 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: vide Haggitt v. Ineff, (1855) 24 L. J. Ch. 120 : (3 W. R. 141) and Performing Right Society Ltd. v. Indian Morning Post Restaurant, A. I. R. (26) 1939 Bom. 347: (I. L. R. (1939) Bom. 295).