Calcutta High Court (Appellete Side)
Sri Subhash Chandra Mondal vs Sunil Kumar Mondal And Others on 12 January, 2021
20 12.01.2021
S.A.T. 340 of 2019
Ct. No. 02 IA NO: CAN 1 of 2019 (Old No: CAN 10362 of 2019)
(Via Video Conference)
Sri Subhash Chandra Mondal
Vs.
Sunil Kumar Mondal and Others
--------------
Mr. Partha Pratim Roy.
..for the appellant.
This appeal has been directed against a
judgment and order dated 26, 2018, passed by the
learned Civil Judge (Senior Division), Kandi,
Murshidabad in Title Appeal no. 72 of 2011 affirming
the judgment and decree dated May 31, 2011 passed
by the learned Civil Judge (Junior Division), 1st Court,
Kandi, Murshidabad in Title Suit no. 174 of 1995.
One Haripada Mondal, since deceased, as
plaintiff filed a suit against his elder son, his daughter-
in-law, and his grandson impleading them as
defendant nos. 1, 2 and 3 respectively.
Haripada made out a case in the plaint that he
became the owner of the suit property by way of
inheritance and purchase. He and his elder daughter-
in-law executed a registered general power of attorney
in favour of his elder son, defendant no. 1, on
February 21, 1983, for administering the suit
properties. Since the defendant no. 1 was
misappropriating the property in respect of which the
power of attorney was executed, Haripada cancelled
the said power of attorney by executing the deed of
cancellation dated August 21, 1995. Haripada pleaded
that he had informed as to the cancellation of the said
power of attorney to the defendant no. 1 orally and
also by a lawyer's letter dated August 21, 1995. The
fact of the cancellation of the general power of attorney
was also published in a local newspaper on August 23,
1995.
The defendant no. 1, in spite of having full
knowledge as to the cancellation of the power of
attorney, executed a sale deed in favour of his wife and
sons i.e. defendant nos. 2 and 3 on August 25, 1995.
Haripada, therefore, filed the suit for a declaration of
his title over the suit property and also for a
declaration that the sale deed executed on August 25,
1995 by the defendant was void and inoperative.
The suit was contested by the defendant nos.1,
2, and 3 asserting as to the genuineness of the sale
deed dated August 25, 1995. The defendants
contended that as sum of Rs.20000/- was paid to the
plaintiff as a consideration money for the sale. It was
the case of the defendants that the defendant no. 1
received the lawyer's notice as to the cancellation of
the deed on August 26, 1995 and as such, he had no
knowledge about the cancellation of the power of
attorney on the date when he executed the sale deed in
favour of his wife and sons on August 25, 1995.
During pendency of the suit Haripada died and
one of the sons of Haripada carried the suit as plaintiff
while other sons and daughters of Haripada were
impleaded as defendants in the suit.
Law relating to cancellation of a power of
attorney has been considered by this bench in a
judgment passed in FMAT 455 of 2019 (Sharad
Singhi Vs. Sheojee Tiwari & Ors.). It was held that :
"The status of the constituted
attorney is akin to an agent terminable at
any point by the principal except the
agent before such time exercised his
authority given under the aforesaid
instrument to bind the principal. More
so, when a power to do specified act is
given to the agent the power of attorney
is required to be construed strictly as the
act of the agent in excess of the authority
shall not bind the principal. The
exception can be seen in Section 202 of
the Contract Act, 1872 protecting the
interest of an agent against termination
of the agency if he has an interest in the
property constituting the subject-matter
of the agency. Illustration (a) appended to
Section 202 of the Act makes the position
more clear when an authority to sell the
property of the principal was given to the
agent who out of the sale proceeds pays
himself to the debts due to him from the
principal. The authority cannot be said to
be a bare agency but coupled with the
grant and may be deemed to be
irrevocable as the purpose underlining
such authority is to secure some benefit.
The contention of the plaintiff that
the aforesaid power of attorney are
irrevocable has to be understood in the
perspective of the intention gathered
from the power of attorney. Mere use of
the word "irrevocable" does not ipso facto
makes the power of attorney irrevocable
but depends upon the terms disclosed
therein that it created or recognized an
agency coupled with interest in favour of
the agent. In other words, the agency
creates any interest in the subject-matter
of the agency into the agent, such agency
cannot be terminated taking shelter
either under Section 201 or 203 of the
Contract Act but the right of the agent is
saved by virtue of an exception provision
contained in Section 202 thereof."
It was not a case of the defendant nos. 1, 2 and
3 that the agency granted in favour of the defendant
no. 1 was coupled with the grant of interest in the suit
property. The agency created by the said power of
attorney was terminable at any point of time by the
original plaintiff in terms of Section 201 of the
Contract Act, 1872. No exception can be taken as to
the cancellation of the said power of attorney by the
original plaintiff since such cancellation did not come
within the mischief of Section 202 of the Contract Act,
1872.
Both the courts below after due consideration of
the evidence adduced came to a concurrent finding
that the original plaintiff, Haripada, had duly cancelled
the said power of attorney by a registered instrument
and the defendant no. 1 had due knowledge of the
cancellation of the power of attorney and in spite of
such knowledge he had executed the sale deed in
favour of his wife and son. Both the courts below also
disbelieved the payment of Rs.20000/- by the
defendants as consideration for the sale to the original
plaintiff. We have no reason to interfere with such
concurrent finding of facts in this second appeal. The
execution of sale deed was without any authority
having no binding effect on the original plaintiff.
The judgment of the courts below does not suffer
from any illegality warranting interference in this
second appeal.
The appeal no. S.A.T. 340 of 2019 and the
connected application, being IA NO: CAN 1 of 2019
(Old No: CAN 10362 of 2019), are dismissed having not
involved any substantial question of law without any
order as to costs.
(Harish Tandon, J.)
(Kausik Chanda, J.)
