Section 85 of the Indian Evidence Act, 1872

Comments:

Definition:

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Power of attorney means “a document by which an agent is given the power to act for his principal, which are duly executed before and authenticated by a notary public or any judge, court or magistrate. Indian Consul or Vice-consul or representative of the Central Government, are presumed to be genuine and genuinely executed or authenticated”.

Principle:

Section 85 provides that the court shall presume a power of attorney executed before, and authenticated by a notary public etc. as genuine. The Supreme Court accepted a document which was authenticated before a notary public of California, U.S.A. The provision of Section 85 is mandatory. Authenticated power of attorney is not valid piece of evidence.

Conditions for valid Power of Attorney:

Two conditions have to be satisfied according to Section 85. (1) It must be executed before a Notary Public and (2) It must be authenticated by him.

The power of attorney was executed by a Director of the Bank duly authorized by a resolution of the Board of Directors to execute the same and its attestation by a Notary Public was also done on the date of execution itself. It clearly indicates that the power of attorney was executed before the Notary Public. A power of attorney executed in Yugoslavia and authenticated by a judge of the same country has to be presumed to have been duly executed and duly authenticated.

The presumption created by Section 85 applies with equal force in reference to documents authenticated by notaries functioning in other countries.A compromise petition was filed in a partition suit. The presumption under section 85 is regarding execution and authentication in respect of all documents which prompt to be power of attorney executed before and authenticated by the notary public. Alleged power of attorney holder represented the respondent and a compromise was recorded.

The respondent was not party to compromise petition and serious discrepancies were noticed as to execution of the power of attorney. The power of attorney was false as it deprived the respondent of his legitimate share and was liable to be set aside.

85A. Presumption as to electronic agreements:

The Court shall presume that every electronic record purporting to be an agreement containing the digital signatures of the parties was so concluded by affixing the digital signature of the parties.

Comments:

Under this section the court shall presume that an electronic agreement made through digital signatures is valid.

85B. Presumption as to electronic records and to (electronic signature):

(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

(2) In any proceedings, involving secure digital signature, the Court shall presume unless the contrary is proved that—

(a) The secure digital signature is affixed by subscriber with the intention of signing or approving the electronic record;

(b) Except in the case of a secure electronic record or a secure digital signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any digital signature.

Presumption:

Where the speaker of Haryana Legislative Assembly in proceeding for disqualifying members before him relied on the video recording of television telecasts of the concerned members not disputed by them, were relied on, it was held that no illegality was committed.

85C. Presumption as to Digital Signature Certificates:

The Court shall presume, unless contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.