Janki Vashdeo Bhojwani v. Indusind Bank Ltd.

Introduction

Can a Power of Attorney holder depose in court on behalf of the principal and give evidence regarding matters that are personally known only to the principal?

The Supreme Court considered this question in Janki Vashdeo Bhojwani & Anr. v. Indusind Bank Ltd. & Ors., (2005) 2 SCC 217; AIR 2005 SC 439.

The judgment is a leading authority on Power of Attorney holders, Order III Rules 1 and 2 of the Code of Civil Procedure, 1908, personal knowledge of witnesses, examination and cross-examination, and the limits of authority of a Power of Attorney holder.

Case Details

Case Name

Janki Vashdeo Bhojwani & Anr. v. Indusind Bank Ltd. & Ors.

Court

Supreme Court of India

Date of Judgment

6 December 2004

Citation

(2005) 2 SCC 217; AIR 2005 SC 439

Bench

R.C. Lahoti, C.J., G.P. Mathur and P.K. Balasubramanyan, JJ.

Relevant Provision

• Order III Rules 1 and 2, Code of Civil Procedure, 1908

Subject Matter

Power of Attorney, evidence, personal knowledge, witness examination and authority to act on behalf of a principal.

Facts of the Case

The dispute concerned a property situated at 38, Koregaon Park, Pune.

The appellants claimed that they had a share in the property and that they were co-owners.

The matter involved questions regarding whether the appellants had contributed towards the purchase of the property from their independent sources of income.

The Supreme Court had earlier directed that the burden of proving their share and contribution towards the property would lie upon the appellants.

However, instead of entering the witness box themselves, the appellants allowed V.R. Bhojwani, their Power of Attorney holder, to appear and depose on their behalf.

The respondent bank objected to this course of action.

The question therefore arose whether a Power of Attorney holder could give evidence in place of the principal regarding matters that were within the personal knowledge of the principal.

Main Issue Before the Supreme Court

The principal issue was:

Whether a Power of Attorney holder can depose in place of the principal in respect of matters of which the principal alone has personal knowledge.

The Supreme Court answered:

No.

A Power of Attorney holder may appear, apply and act on behalf of the principal under Order III Rules 1 and 2 CPC.

However, this does not mean that the Power of Attorney holder can automatically depose as a substitute for the principal regarding matters personally known to the principal.

Order III Rules 1 and 2 CPC

The judgment primarily revolves around Order III Rules 1 and 2 of the Code of Civil Procedure, 1908.

These provisions permit parties to appear and act in court personally or through recognised agents.

A Power of Attorney holder can therefore perform acts authorised by the Power of Attorney.

But the Supreme Court drew an important distinction between:

acting on behalf of a person

and

giving evidence on behalf of that person.

These are not the same thing.

Meaning of “Act”

The Court examined the word “acts” used in Order III Rules 1 and 2 CPC.

The Court held that the word “acts” refers to acts performed by the Power of Attorney holder in exercise of the authority granted to him.

It does not include the power to depose in place of the principal regarding matters that were actually done or personally experienced by the principal.

Therefore:

Power to act ≠ Power to give evidence in place of the principal.

Power of Attorney Holder Can Act

A Power of Attorney holder may generally:

• appear before the court;
• file applications;
• conduct procedural acts;
• sign documents where authorised;
• make submissions within the scope of authority; and
• perform other acts specifically authorised by the Power of Attorney.

However, the holder cannot simply assume the personal knowledge of the principal.

Power of Attorney Holder Cannot Substitute Himself as Principal

The Court made it clear that a Power of Attorney holder cannot become a witness in the capacity of the principal.

For example:

A gives B a Power of Attorney.

A personally purchased a property.

A personally paid the consideration.

A personally negotiated the transaction.

B cannot automatically enter the witness box and say:

“I am giving evidence about what A personally did.”

B can only testify about matters that are within B’s own personal knowledge.

Personal Knowledge Is the Key

The most important principle from the judgment is personal knowledge.

A Power of Attorney holder may give evidence concerning:

• acts performed by him;
• transactions handled by him;
• communications received by him;
• events personally witnessed by him; and
• other matters within his personal knowledge.

But he cannot give evidence about matters which:

• were personally known only to the principal;
• were personally done by the principal; or
• require the principal to be cross-examined.

Why Is Personal Knowledge Important?

Evidence is based upon the witness’s knowledge of the facts.

A witness cannot simply acquire another person’s personal knowledge through a Power of Attorney.

A Power of Attorney transfers authority to act.

It does not transfer:

personal experiences + personal knowledge + personal memory.

This is why the Supreme Court restricted the ability of a Power of Attorney holder to depose on behalf of the principal.

Cross-Examination

The Court placed particular importance on the right of the opposing party to cross-examine the person who actually possesses knowledge of the disputed facts.

Suppose A personally negotiated a transaction.

If B, who did not participate in the transaction, gives evidence instead of A, the opposing party cannot effectively cross-examine B about A’s personal conduct and knowledge.

Therefore, where the facts are personally known to the principal, the principal must ordinarily enter the witness box and face cross-examination.

Application to the Present Case

The appellants were required to prove:

• that they had a share in the property;
• the extent of their share;
• that they had contributed towards the purchase; and
• that the contribution came from their independent sources of income.

These were matters relating to the personal financial circumstances and conduct of the appellants.

The Power of Attorney holder did not possess the necessary personal knowledge to establish these matters on their behalf.

Therefore, the Supreme Court held that the appellants themselves were required to enter the witness box.

Burden of Proof

The case also demonstrates the relationship between burden of proof and examination of witnesses.

The Supreme Court had placed the burden on the appellants to establish their claim.

Once the burden was placed upon them, they could not avoid entering the witness box by simply authorising another person to depose about matters personally known to them.

The evidence had to come from the persons who possessed the relevant personal knowledge.

Failure to Enter the Witness Box

The Court also referred to the principle laid down in Vidhyadhar v. Manikrao, (1999) 3 SCC 573.

Where a party does not enter the witness box to state his own case and does not offer himself for cross-examination, the court may draw an adverse inference against that party in appropriate circumstances.

Therefore:

Party has personal knowledge + avoids witness box + does not offer himself for cross-examination → adverse inference may arise.

Important Distinction

The judgment does not say that a Power of Attorney holder can never give evidence.

That would be an incorrect interpretation.

The correct rule is:

A Power of Attorney holder can give evidence regarding acts or transactions personally performed or known by him, but cannot depose for the principal concerning matters of which only the principal has personal knowledge.

This distinction is extremely important.

Example 1: Valid Evidence by Power of Attorney Holder

A gives B a Power of Attorney to manage A’s property.

B personally entered into a lease agreement with C on behalf of A.

A dispute later arises regarding that lease.

B can give evidence regarding:

• the execution of the lease;
• negotiations conducted by B;
• rent received by B;
• communications received by B; and
• other matters personally known to B.

Because B personally handled the transaction, B can testify about it.

Example 2: Invalid Substitution

Suppose A purchased a property using his own income.

B is A’s Power of Attorney holder but had no involvement in the purchase.

A later claims:

“I personally paid the purchase price from my income.”

B cannot simply enter the witness box and testify about A’s personal income and payment merely because B holds a Power of Attorney.

Those matters are within A’s personal knowledge.

Example 3: Property Transaction

A authorises B to manage A’s property.

B later sells the property under the authority granted by A.

If litigation arises concerning the sale transaction, B may give evidence regarding the acts performed by B in connection with the sale.

But if the dispute concerns why A originally purchased the property twenty years earlier, B cannot automatically testify about A’s personal intentions unless B actually possesses personal knowledge of those facts.

Power of Attorney Does Not Transfer Personal Knowledge

This is one of the easiest principles to remember.

A Power of Attorney transfers:

authority

but not:

personal knowledge.

Therefore:

Authority can be delegated; personal knowledge cannot.

Supreme Court’s Reasoning

The Supreme Court observed that allowing a Power of Attorney holder to depose for the principal in respect of matters personally known only to the principal would defeat the basic purpose of examination and cross-examination.

A person who has personal knowledge of the facts must ordinarily be available to answer questions concerning those facts.

The Court therefore rejected the interpretation that the word “acts” in Order III Rules 1 and 2 includes the power to give evidence in place of the principal.

Relationship With Shambhu Dutt Shastri v. State of Rajasthan

The Supreme Court referred to Shambhu Dutt Shastri v. State of Rajasthan, where it was held that a General Power of Attorney holder may appear, plead and act on behalf of a party but cannot become a witness on behalf of that party.

The Supreme Court in Janki Vashdeo Bhojwani approved this reasoning.

Relationship With Ram Prasad v. Hari Narain

The judgment also referred to Ram Prasad v. Hari Narain, where it was held that the expression “acts” in Order III Rule 2 CPC does not include the act of a Power of Attorney holder appearing as a witness on behalf of the principal.

The Power of Attorney holder may appear as a witness in his own capacity and testify regarding facts within his own knowledge.

Power of Attorney Holder as a Witness in His Own Capacity

This is another important distinction.

A Power of Attorney holder can enter the witness box.

But he enters it as:

a witness possessing his own personal knowledge

and not as:

a substitute for the principal.

Thus, the correct question is not:

“Is the witness a Power of Attorney holder?”

The correct question is:

“Does the witness personally know the facts about which he is giving evidence?”

Later Clarification

The principle established in Janki Vashdeo Bhojwani has continued to be applied by the Supreme Court.

The Court has reiterated that a Power of Attorney holder may depose regarding acts performed by the holder himself, but cannot depose for the principal concerning acts performed by the principal or matters that are exclusively within the principal’s personal knowledge.

This makes the case a continuing authority on the distinction between representation and personal testimony.

Supreme Court’s Decision

The Supreme Court held that the appellants had failed to establish that they had contributed towards the purchase of the property from their independent sources of income.

The Tribunal had erred in permitting the Power of Attorney holder to enter the witness box and depose in place of the appellants.

The Supreme Court therefore set aside the finding that the appellants were co-owners of the property.

Ratio Decidendi

The ratio of Janki Vashdeo Bhojwani v. Indusind Bank Ltd. is that a Power of Attorney holder can appear, apply and act on behalf of the principal under Order III Rules 1 and 2 CPC, but cannot depose in place of the principal concerning matters that are within the principal’s personal knowledge. The Power of Attorney holder may give evidence regarding acts personally performed by him or matters within his own knowledge, but cannot substitute himself for the principal as a witness.

Legal Principles Established

1. Power of Attorney Holder Can Act

A Power of Attorney holder can appear and perform authorised acts on behalf of the principal.

2. Power to Act Does Not Mean Power to Depose

Order III Rules 1 and 2 do not authorise a Power of Attorney holder to automatically give evidence in place of the principal.

3. Personal Knowledge Is Essential

The witness must personally know the facts about which he gives evidence.

4. Principal May Have to Enter Witness Box

Where the facts are exclusively within the principal’s personal knowledge, the principal must ordinarily give evidence himself.

5. Cross-Examination Is Important

The person possessing personal knowledge must be available for cross-examination.

6. Power of Attorney Does Not Transfer Personal Knowledge

Authority may be delegated, but personal knowledge cannot be transferred through a Power of Attorney.

7. Power of Attorney Holder Can Give Evidence About His Own Acts

A holder can testify regarding acts personally performed by him under the Power of Attorney.

Important Examination Question

Can a Power of Attorney holder depose on behalf of the principal?

Not as a general rule.

He cannot depose regarding matters that are personally known only to the principal.

However, he may depose about:

• acts performed by him;
• transactions handled by him; and
• facts within his own personal knowledge.

Important Examination Question

Can a Power of Attorney holder be a witness?

Yes.

But he gives evidence in his own capacity, based upon his personal knowledge.

He cannot simply assume the identity of the principal in the witness box.

Important Examination Question

Does Order III Rule 2 CPC allow a Power of Attorney holder to give evidence?

No, not in the sense of substituting the holder for the principal.

The expression “acts” refers to acts performed by the Power of Attorney holder under the authority granted to him.

It does not include giving evidence concerning matters personally known only to the principal.

Difference Between “Acting” and “Deposing”

Acting	Deposing
Procedural/legal representation	Giving evidence
Can generally be delegated	Personal knowledge is required
Power of Attorney can authorise acts	Cannot substitute for principal
Covered by Order III Rules 1 and 2	Subject to rules of evidence
Representative may act	Witness must testify from personal knowledge

Practical Application

Suppose a plaintiff gives his brother a General Power of Attorney.

The plaintiff personally entered into an agreement with the defendant.

The brother did not participate in the negotiation.

During trial, the brother attempts to prove:

• what the plaintiff told the defendant;
• why the plaintiff entered into the agreement;
• what the plaintiff intended;
• how much money the plaintiff personally paid.

Under Janki Vashdeo Bhojwani, the brother cannot simply give evidence on these matters because he holds a Power of Attorney.

The plaintiff, being the person with personal knowledge, would ordinarily need to enter the witness box.

Another Practical Application

Now change the facts.

The brother personally negotiated the agreement under the authority of the Power of Attorney.

He personally paid the consideration on behalf of the plaintiff.

He personally communicated with the defendant.

In that situation, the brother can give evidence regarding those matters because they fall within his own personal knowledge.

This is the correct application of the judgment.

Connection With Burden of Proof

The case is particularly important where the burden of proving a fact lies on a party.

If the party has personal knowledge of that fact and chooses not to enter the witness box, he cannot necessarily avoid that responsibility by sending a Power of Attorney holder.

The representative cannot become a substitute source of personal knowledge.

Key Distinction

Situation	Legal Position
Power of Attorney holder appears	Generally permissible
Holder performs authorised acts	Permissible
Holder gives evidence about his own acts	Permissible
Holder gives evidence about principal’s personal acts	Not permissible
Holder gives evidence about facts only principal knows	Not permissible
Principal avoids witness box	Adverse inference may arise in appropriate cases
Power of Attorney	Does not transfer personal knowledge

Examination Formula

For Janki Vashdeo Bhojwani, remember:

Power of Attorney

↓

Order III Rules 1 & 2 CPC

↓

Can Appear + Apply + Act

↓

But Cannot Automatically Depose

↓

Personal Knowledge Required

↓

Holder Can Depose About His Own Acts

↓

Principal Must Depose About Principal’s Personal Knowledge

A simple memory formula is:

Power to Act ≠ Power to Depose.

Relationship With Other Important Cases

Shambhu Dutt Shastri v. State of Rajasthan

GPA holder can act but cannot depose as principal.

Ram Prasad v. Hari Narain

“Acts” under Order III Rule 2 does not include substitution of the principal as a witness.

Vidhyadhar v. Manikrao

Failure of a party to enter the witness box may permit an adverse inference in appropriate circumstances.

Janki Vashdeo Bhojwani v. Indusind Bank

Power of Attorney holder cannot depose about matters personally known only to the principal.

These cases together create a useful framework for understanding Power of Attorney and evidence.

Why This Case Is Important

The judgment prevents the Power of Attorney mechanism from being misused.

A Power of Attorney exists to facilitate representation and performance of authorised acts.

It cannot be used to avoid:

• examination of the actual party;
• cross-examination of the person with personal knowledge; or
• the burden of proving facts that are exclusively within the party’s knowledge.

Thus, the case protects the integrity of the evidentiary process.

Broader Principle

The judgment reflects a basic rule of evidence:

A witness must speak from his own knowledge.

A Power of Attorney cannot manufacture personal knowledge.

The authority to represent someone in court is therefore different from the ability to testify about that person’s personal experiences.

Law Student and Judiciary Relevance

For examinations, remember:

Order III Rules 1 & 2 CPC → Appearance and acts through recognised agent.

Power of Attorney holder → Can act on behalf of principal.

Evidence → Must be based on personal knowledge.

Principal’s personal knowledge → Principal should testify.

Holder’s own acts → Holder may testify.

Cross-examination → Person with personal knowledge must be available.

Power of Attorney → Does not transfer personal knowledge.

The most important proposition is:

A Power of Attorney holder cannot depose in place of the principal regarding matters of which only the principal has personal knowledge, although the holder may testify about acts personally performed by him.

ALSO READ: R.D. Saxena v. Balram Prasad Sharma

Conclusion

Janki Vashdeo Bhojwani v. Indusind Bank Ltd. is a leading authority on the limits of a Power of Attorney holder’s role in civil litigation.

The Supreme Court drew a clear distinction between acting as a representative and giving evidence as a witness.

A Power of Attorney holder can represent the principal and perform authorised acts. However, the holder cannot step into the shoes of the principal and testify about matters that are personally known only to the principal.

The central lesson is:

A Power of Attorney transfers authority, not personal knowledge.

For a law student, remember:

Power of Attorney → Can Act.

Personal Knowledge → Must Testify.

Holder’s Own Acts → Can Give Evidence.

Principal’s Personal Acts → Principal Must Testify.

Power to Act ≠ Power to Depose.