The Kerala High Court recently passed a significant order in O.P (C) No. 3213 of 2018, addressing the validity of a power of attorney executed in the United States and its recognition in Indian courts. The judgment, delivered by Justice K. Babu on July 31, 2025, dealt with a challenge to an earlier order passed by the III Additional Subordinate Judge’s Court, Ernakulam, which had accepted the foreign power of attorney and permitted the plaintiff to proceed with a civil suit based on it.
The case involved an 80-year-old petitioner, Margret @ Thankam, who filed a civil suit through her Power of Attorney (PoA) holder seeking execution of a release deed and partition of family property. She also requested the declaration of a certain gift deed as void. The first defendant in the suit filed an interlocutory application under Order VI Rule 16 and Order VII Rule 11 read with Section 151 of the Civil Procedure Code, challenging the legitimacy of the PoA document executed in Missouri, USA.
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The trial court had dismissed the objections and allowed the plaintiff to proceed using the foreign-executed PoA. This led the first defendant to approach the High Court in revision.
The mandate of Section 14 of the Notaries Act is clear: unless the foreign country where the power of attorney is executed is a reciprocating country, the notarial act cannot be recognised in India, the High Court observed, setting aside the part of the trial court order that accepted the foreign notarised document.
The petitioner’s PoA had been notarised in St. Louis County, Missouri, on April 13, 2018. The challenge was based on three primary grounds: lack of proper identification before the notary, non-recognition of Missouri as a reciprocating territory under Indian law, and non-compliance with stamp and registration laws. However, during arguments, the senior counsel for the petitioner chose to press only the second point—reciprocation.
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The High Court noted that Section 14 of the Notaries Act empowers the Central Government to declare, via notification, that notarial acts done in a foreign country will be recognised in India. The judge highlighted that no such notification has been issued regarding the State of Missouri. Without this, the presumption of valid execution and authentication under Section 85 of the Indian Evidence Act could not apply.
“In the absence of proof of reciprocation of the foreign country where the power of attorney was executed before the notary public, the presumption under Section 85 of the Evidence Act would not arise,” the Court ruled.
Justice K. Babu distinguished earlier judgments cited by the plaintiff, such as Jugraj Singh v. Jaswant Singh and Abdul Jabbar v. 2nd Additional District Judge, observing that those cases did not directly consider the application of Section 14 of the Notaries Act. The Court also disagreed with the Allahabad High Court’s view that presumption under Section 85 could be drawn without notification under Section 14, asserting that such a reading could interfere with the integrity of legal procedures and international standards.
Despite setting aside the part of the trial court's order that accepted the foreign power of attorney, the High Court did not quash the entire plaint. It found that the absence of a valid power of attorney was not sufficient ground to reject the suit outright.
The Court granted liberty to the plaintiff to produce a duly executed and recognised power of attorney in accordance with Indian law and proceed with the case.
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Accordingly, the High Court disposed of the original petition, setting aside the trial court’s acceptance of the foreign power of attorney, while upholding the plaintiff’s right to continue the proceedings with proper documentation.
Case No: OP(C) No. 3213 of 2018
Case Title: Margret @ Thankam v. Joseph Mathew Chettupuzha
Counsel for the petitioner: S.V. Balakrishna Iyer (Sr.), V.L. Shenoy, Anoop V. Nair, Tanoosha Paul, Rohit C., Avanthika R.
Counsel for the respondent: M. Baiju Noel, T.S. Likhitha, Jithin T.P.