Gujarat High Court
Manubhai Chhotabhai Patel vs Manubhai Motibhai ... on 15 June, 2022
Bench: A. P. Thaker
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 202 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
MANUBHAI CHHOTABHAI PATEL & 1 other(s)
Versus
MANUBHAI MOTIBHAI PATEL-DIED-THROUGH HIS HEIRS AND L.R.
==========================================================
Appearance:
MR KV SHELAT(834) for the Appellant(s) No. 1,2
MR MANAV A MEHTA(3246) for the Respondent(s) No. 2
MR MC BAROT(144) for the Respondent(s) No. 1,1.2,1.3
==========================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 15/06/2022
CAV JUDGMENT
1. This Second Appeal has been preferred by the
defendants against the judgment and decree dated
13.05.2015 passed by the learned Principal District
Judge, Gandhinagar in Regular Civil Appeal No.1 of
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
2015 confirming the judgment and decree of the learned
Trial Court passed in Special Civil Suit No.31 of 1999
dated 28.02.2014, under Section 100 of the Code of Civil
Procedure, 1908.
2. The appellants are the original-defendants and the
respondents are the original-plaintiffs. For the brevity
and convenience, the parties are referred to in this
Judgment as per the character assigned to them by the
learned Trial Court.
3. The brief facts of the case are as under :
3.1. It pertains to new tenure land situated at Revenue
Survey No. 944/1 ad-measuring 0.28 Gunthas and
Revenue Survey no. 941/1 ad-measuring 0.22 Gunthas
situated at Uvarsad : Taluka, District Gandhinagar,
which was originally belong to one Motibhai Hirabhai,
who was the father of the respondent - original plaintiff
and thereafter, the said suit land stood mutated in the
name of the plaintiff and her mother Chanchalben
Motibhai.
3.2. That the plaintiff and Chanchalben Motibhai gave a
power of attorney on 29.03.1989 in favour of Manubhai
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
Chotabhai (defendant No.1). After her death, the plaintiff
issued a Notice on 07.05.1996 to the defendant No.1 for
cancelling the said Power of Attorney, wherein, he was
specifically informed regarding the suit land. The said
Notice was returned with an endorsement of refused.
According to the plaintiff, though the Power of Attorney
was cancelled, the defendants filed a Civil Suit on
18.05.1996 in the Civil Court, Gandhinagar and prayed
that the defendants (plaintiffs of this case) do not have
any right to cancel the Power of Attorney and he had
also sought for interim injunction, which came to be
rejected by the learned Trial Court.
3.3. According to the plaintiff, though the Power of
Attorney was cancelled that the defendants initiated
proceedings of conversion of land from new tenure to old
tenure and obtained order accordingly from the authority
on 31.03.1998 and on that basis, defendant No.1 has
executed one sale deed in favour of his son - defendant
No.2 vide registered sale deed dated 02.04.1998, which
are not binding to the plaintiff. It is also alleged that
the defendants had no any right or title over the land
since the plaintiff was residing at Ahmedbad. Defendant
No.1 executed sale deed and also trespass over the land
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
and on that basis, the plaintiff filed a suit for
cancellation of the registered sale-deed and for
declaration and injunction restraining the defendants to
enter upon the land and do anything and creating third
party interest.
3.4. The defendants have resisted the suit by filing reply
at Exh.17 and denied all the contentions of the plaintiff.
According to the defendants, as a plaintiff and his
mother were intended to sale the property and since it
could not be transferred without converting it in old
tenure land they executed Power of Attorney in favour of
the defendant No.1 with interest thereon and has
accepted the amount of Rs.63,100/- and has also handed
over the possession of the land in question to defendant
No.1. The defendants took stand that having possession
of the suit land and on that basis, they have acted upon
to obtain necessary permission from the authorities for
conversion of land from new tenure to old tenure and
also paid amount of premium. It is also contended that
since there was a rise in the price of land, the plaintiffs
wanted to resile from the obligation under the Power of
Attorney, he had to file the suit against them.
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
3.5. It is also contended that the defendant No.2 is a
bona fide purchaser of the land and that has paid
requisite consideration and has become owner of the
property by registered sale deed and the plaintiff has no
right to restrain them from using land in question and
the suit itself is liable to be dismissed.
4. On the basis of the pleadings of the parties, the
learned Trial Court has framed issue at Exh. 23 to the
following effects :-
"1. Wheteher the plaintiff proves that the he
is owner and occupier of the suit property?
2. Wheteher the plaintiff proves that power
of attorney executed by him is favor of
defendant no. 1 on 29-07-1989 is cancelled on
07-05-1996. So defendant no. 1. has no right
to sell the suit property to defendant no. 2 ?
3. Wheteher the plaintiff proves that sale
deed executed in favor of defendant no.2 on
02-04-1998 is false, frivolous, void & ab-initio ?
4. Wheteher the plaintiff proves that he is
entitled to get the possession of the suit
property from defendants ?
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
5. Wheteher the defendant proves that he
has purchased the suit property from the
plaintiff and paid sale price of Rs. 63100/-?
6. Wheteher the plaintiff is entitled to get
the relief as prayed for ?
7. What order and decree ?"
5. After perusing the evidence on record and hearing
both the sides, the learned Trial Court has decided Issue
Nos.1, 2, 3, 4 and 6 in affirmative and Issue No.5 in
negative and ultimately decreed the suit of the plaintiff.
6. Being aggrieved against the said judgment and
decree of the learned Trial Court, the defendants -
appellants preferred Regular Civil Appeal No.1 of 2015
before the Court of learned Principal District Judge,
Gandhinagar. It has raised various issues, Appellate
Court has also framed issues in the said judgment in
para 4, which reads as under :
"(i) Whether the Trial Court has erred in
holding that the appellant No.1 was aware of
cancellation of power of attorney ?
(ii) Whether the Trial Court has erred in
holding that as the power of attorney is
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
cancelled, appellants have no right to suit
property to the defendant No.2 ?
(iii) Whether the Trial Court has erred in
holding that the sale deed in favour of
appellant No.2, dated 02.04.1998 is false,
frivolous and ab-initio void ?
(iv) Whether the order passed by the 7th
Additional Senior Civil Judge, Gandhinagar in
Special Civil Suit No.31/1999, dated 28.02.2014
is erroneous and having mis-conception of facts
and law?
(v) What order ?
st
Appellate Court has answered all the points in negative
and ultimately dismissed the appeal.
8. Vide order dated 08.09.2016, the present Second
Appeal has been Admitted for the following substantial
questions of law:
(A) Whether in the facts and circumstances of
the case in view of the provisions of the
POWER OF ATTORNEY ACT, read with the
provisions of Contract Act relating to agency
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
and the TRANSFER OF PROPERTY Act,
whether the Courts below have erred at law
and on facts in holding that poa in the
present case could have been cancelled without
serving legal notice as required at law? And
whether courts below have erred in
interpreting the poa in the present case, which
was in the nature of irrevocable poa and
coupled with interest and having parted with
the possession of suit lands and receipt of sale
consideration, whether the plaintiff was
estopped from filing and seeking the prayers
as prayed in suit?
(B) Whether in the facts and circumstances of
the case, when the original plaintiff himself
admitted that, he sent cancellation notice to
poa holder at a wrong address, where he was
not residing, at all and when there was no
revocation of poa by public notice, whether the
judgment and decree of courts below requires
to be set aside ?
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
(C) Whether in the facts and circumstances of
the case, the courts below have erred at law
and have committed material irregularity in
not framing proper issues questions for
determination, looking to pleadings and
contentions of the defendants ?
(D) Whether in the facts and circumstances of
the case, the Courts below have erred in
coming to the conclusion that the suit filed by
the plaintiff requires to be allowed ? and
whether the courts have committed material
jurisdiction errors by not applying mind to
relevant facts and got influenced by irrelevant
facts?
9. Heard learned Senior Counsel Shri K.V. Shelat for
the appellants (defendants), learned Senior counsel Shri
Yatin Oza with learned advocate Mr. M.C. Barot for the
respondent No.1 (original plaintiff) and learned Senior
Counsel Shri R.S. Sanjanwala assisted by learned
advocate Mr. M.A. Mehta for the respondent No.2 at
length. Perused the judgment and decree passed by
both the Courts below and the records and proceedings
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
10. My findings on the aforesaid questions of law, for
the reasons given below, are as under :
(i) In the negative.
(ii) In the negative.
(iii) In the negative.
(iv) In the negative.
Reasons
11. Point Nos. (i) to (iv) Since the facts of the case and
the legal aspects involving all the questions of law are
interconnected, to avoid repetition of the same, all are
discussed together.
12. Learned Senior Counsel Shri Shelat for the
appellants has vehemently submitted that the owners of
the land are not staying at Village and they are staying
at Ahmedabad. He has submitted that plaintiff and his
mother were desirous of selling the land, which is of
new tenure land, they apprehended defendant No.1 and
executed the Power of Attorney coupled with interest on
29.03.1989 in his favour. He has also vehemently
submitted that after receiving the substantial amount of
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
consideration, which was reflected from the Power of
Attorney, interest was created in favour of the Power of
Attorney holder in relation to the land in question.
According to him, since the Power of Attorney was
coupled with interest, even after death of the mother,
the Power of Attorney cannot come to an end and it
subsists forever. He has submitted that the main reason
for giving such irrevocable Power of Attorney coupled
with interest was that the subject land was restricted
tenure land with restriction under Section 43 of the
Tenancy Act. He has vehemently submitted that at the
time of execution of such Power of Attorney in favour
of the defendant No.1, possession of the land was also
handed over to him and thereafter, the owner never
visited the suit premises.
12.1. He has vehemently submitted that the defendant
No.1 have got converted the new tenure land to old
tenure land vide order dated 31.03.1998 and has also
paid premium as demanded by the Government.
Regarding the alleged Notice issued by the plaintiff to
the defendant No.1 of cancellation of Power of Attorney,
he has submitted that the plaintiff in his evidence has
accepted that it was sent to defendant No.1 at wrong
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
address. According to him, when there was no actual
notice of cancellation of Power of Attorney by public
notice or to the proper address of the defendant No.1,
such Notice cannot be treated as a proper Notice to the
defendant No.1.
12.2. He has submitted that after obtaining the necessary
permission of conversion of land, the Power of Attorney
holder defendant No.1 has sold it to the defendant No.2.
According to him, defendant No.2 is a bona fide
purchaser of the land. He has also submitted that
considering the provisions of the Power of Attorney Act
read with the provisions of Contract Act and the
Transfer of Property Act, once the right of the property
has already been conveyed by owners of the land in
favour of the Power of Attorney, the original owners
have no right to cancel the Power of Attorney
unilaterally. He has submitted that the entire exercise
undertaken by the plaintiff in filing the suit is also not
proper one. He has submitted that there was no public
notice issued by the plaintiff cancelling the Power of
Attorney in favour of the defendant No.1 and therefore,
whatever action has been undertaken by the defendant
No.1 was within his authority and the plaintiff cannot
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
challenge it afterwards. Learned Senior Counsel Mr.
Shelat has also referred to the oral and documentary
evidence and submitted that as per evidence on record,
at the time of execution of the Power of Attorney, Rs.
61,000/- has been paid and thus it was not a simple
Power of Attorney, but it was a Power of Attorney
coupled with the interest. He has submitted that even
if Chanchalben has died, Power of Attorney subsist as it
was the Power of Attorney granted coupled with the
interest. He has also submitted that as the plaintiffs
were trying to interfere with the exercise of powers by
the Power of Attorney, the defendant No.1 had filed a
suit but that facts does not ifso facto suggests that the
Power of Attorney had knowledge of the cancellation of
the same. He has submitted that the Power of Attorney
given to the defendant No.1 was irrevocable with interest
and therefore, he can do anything, whatever he likes and
there is no any limit over the exercise of powers by him.
12.3. Learned Senior Counsel Mr. Shelat for the
defendants - appellants has vehemently submitted that
both the Courts below have misread the entire oral and
documentary evidence and not considered the same
properly. He has submitted that the impugned judgment
and decree of both the Courts below are not sustainable
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
in the eyes of law and the same needs to be set aside
by this Appellate Court and to decide the substantial
questions of law in favour of the appellants and to
dismiss the suit of the plaintiffs with costs.
13. Shri Shelat has relied upon following decisions in
support of his submission :
(i) Ranjit Kumar Karmakar @ Dulal Karmakar vs.
Hari Shankar Das reported in 2019 LawSuit (SC) 1077,
paras 12 and 13 read as under:
"12. Section 100 (5) of the Code of Civil Procedure, 1908
(hereinafter referred to as "the Code"), in express terms,
provides that the second appeal shall be heard only on the
substantial question(s) of law framed by the High Court
under Section 100 (4) of the Code. Therefore, the High
Court has to confine its inquiry to the question(s) framed
and not beyond it.
13. The proviso to sub-section (5) of Section 100 of the Code
also enables the respondent to raise a plea at the time of
hearing that the questions framed either do not arise in the
case or the questions framed are not the substantial
questions of law. At the same time, the High Court has the
jurisdiction to frame any additional question(s) of law but
this the High Court can do by assigning the reasons."
(ii) Seth Loon Sethiya v. Ivan E. John and others
reported in AIR 1969 Supreme Court 73, especially para
5, which reads as under :
"8. There is hardly any doubt that the power given
by the appellant in favour of the bank is a power
coupled with interest. That is clear both from the
tenor of the document as well as from its terms.
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
Section 202 of the Contract Act provides that where
the agent has himself an interest in the property
which forms the subject-matter of the agency, the
agency cannot, in the absence of an express contract,
be terminated to the prejudice of such interest. It is
settled law that where the agency is created for
valuable consideration and authority is given to
effectuate a security or to secure interest of the agent,
the authority cannot be revoked. The document itself
says that the power given to the bank is irrevocable.
It must be said in fairness to Shri Chagla that he did
not contest the finding of the High Court that the
power in question was irrevocable."
(iii) Tmt. Kasthuri Radhakrishnan and others v. M.
Chinniya and another reported in AIR 2016 SUPREME
COURT 609, especially para Nos.28, 41 to 44 which
reads as under:
"28) Learned counsel pointed out that in these circumstances
any act done by Dhanapal in relation to suit premises including
creation of tenancy was an act done for and on behalf of A.
Radhakrishnan. It was, therefore, urged that the tenancy was,
as a fact, between A. Radhakrishnan being owner/landlord of
suit premises and respondent No.1 as his tenant which later
devolved on the appellants after the death of A.
Radhakrishanan by operation of law thereby conferring a right
on the appellants as co-owners of suit premises to file the
eviction petition against respondent No.1 for his eviction from
the suit premises.
41) In our opinion, Dhanapal was a power of attorney holder of
A. Radhakrishnan. He executed the tenancy agreement on
behalf of the original owner - A. Radhakrishnan in favour of
respondent No.1. Such act done by Dhanapal did not create
any right, title and interest in his favour and nor he ever
asserted any such right in himself and indeed rightly qua A.
Radhakrishnan or the appellants in relation to suit premises.
That apart, respondent No.1 in clear terms admitted in his
evidence and in the pleading of cases filed by him against the
appellants about his status as being the tenant. In the light of
this legal position, the High Court should have held this issue
in appellants' favour.
42) The law relating to power of attorney is governed by the
provisions of the Power of Attorney Act, 1982. It is well settled
therein that an agent acting under a power of attorney always
acts, as a general rule, in the name of his principal. Any
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
document executed or thing done by an agent on the strength
of power of attorney is as effective as if executed or done in
the name of principal, i.e., by the principal himself. An agent,
therefore, always acts on behalf of the principal and exercises
only those powers, which are given to him in the power of
attorney by the principal. Any act or thing done by the agent on
the strength of power of attorney is, therefore, never construed
or/and treated to have been done by the agent in his personal
capacity so as to create any right in his favour but is always
construed as having done by the principal himself. An agent,
therefore, never gets any personal benefit of any nature.
Applying the aforesaid principle, this Court in Suraj Lamp and
Industries Private Limited (2) vs. State of Haryana & Anr.,
(2012) 1 SCC 656 held in paragraphs 20 and 21 as under:
"20. A power of attorney is not an instrument of transfer
in regard to any right, title or interest in an immovable
property. The power of attorney is creation of an
agency whereby the grantor authorises the grantee to
do the acts specified therein, on behalf of grantor,
which when executed will be binding on the grantor as
if done by him (see Section 1-A and Section 2 of the
Powers of Attorney Act, 1882). It is revocable or
terminable at any time unless it is made irrevocable in
a manner known to law. Even an irrevocable attorney
does not have the effect of transferring title to the
grantee.
21. In State of Rajasthan v. Basant Nahata, (2005) 12
SCC 77, this Court held: (SCC pp. 90 & 101, paras 13
& 52) "13. A grant of power of attorney is essentially
governed by Chapter X of the Contract Act. By reason
of a deed of power of attorney, an agent is formally
appointed to act for the principal in one transaction or a
series of transactions or to manage the affairs of the
principal generally conferring necessary authority upon
another person. A deed of power of attorney is
executed by the principal in favour of the agent. The
agent derives a right to use his name and all acts,
deeds and things done by him and subject to the
limitations contained in the said deed, the same shall
be read as if done by the donor. A power of attorney is,
as is well known, a document of convenience.
***
52. Execution of a power of attorney in terms of the
provisions of the Contract Act as also the Powers of
Attorney Act is valid. A power of attorney, we have
noticed hereinbefore, is executed by the donor so as to
enable the donee to act on his behalf. Except in cases
where power of attorney is coupled with interest, it is
revocable. The donee in exercise of his power under
such power of attorney only acts in place of the donor
subject of course to the powers granted to him by
reason thereof. He cannot use the power of attorney
for his own benefit. He acts in a fiduciary capacity. Any
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
act of infidelity or breach of trust is a matter between
the donor and the donee." An attorney-holder may
however execute a deed of conveyance in exercise of
the power granted under the power of attorney and
convey title on behalf of the grantor." This was followed
by this Court in Church of Christ Charitable Trust and
Educational Charitable Society vs. Ponniamman
Educational Trust, (2012) 8 SCC 706 (para 20)
43) When we apply this well settled principle of law to the facts
of the case in hand, we are of the considered view that when
Dhanapal, who was acting as an agent of A. Radhakrishnan
on the strength of power of attorney, executed the tenancy
agreement with respondent No. 1 in relation to the suit
premises then he did such execution for and behalf of his
principal - A Radhakrishnan, which resulted in creating a
relationship of landlord and tenant between A. Radhakrishnan
and respondent No. 1 in relation to the suit premises. In this
execution, Dhanapal being an agent did not get any right, title
and interest of any nature either in the suit premises or in
tenancy in himself. The effect of execution of tenancy
agreement by an agent was as if A. Radhakrishnan himself
had executed with respondent No.1.
44) In view of the foregoing discussion, we are of the
considered opinion that the High Court was not right in holding
that the tenancy in relation to suit premises was with
Dhanapal. We cannot thus concur with the finding of the High
Court and accordingly reverse the finding and hold that the
appellants were able to prove that the tenancy in relation to
the suit premises was between A. Radhakrishnan and
respondent No.1 and on the death of A. Radhakrishnan, it was
created between the appellants and respondent No.1 by
operation of law which entitled the appellants to maintain the
eviction petition against respondent No.1 seeking his eviction
on the grounds available to them under the Act."
(iv) L.N. Aswathama and another v. P. Prakash reported
in (2009) 13 Supreme Court Cases 229, paras 7 and 8,
which reads thus:
"7.We find that the High Court did not formulate any
points for consideration, nor examine the relevant issues or
evidence. It reversed the well considered judgment of the
trial court mainly on the ground that katha number of the
suit property, given in two of the documents relied by the
plaintiffs did not tally. It overlooked the fact that the trial
court had recorded its findings based on other evidence, by
excluding the said two documents from consideration. The
High Court also ignored the explanation for the
discrepancy, offered by the plaintiffs.
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
8.The first appellate court can re-appreciate evidence and
record findings different from those recorded by the trial
court. It is well settled that if the appraisal of evidence by
the trial court suffers from material irregularity, as for
example when its decision is based on mere conjectures
and surmises, or when its decision relies upon inadmissible
evidence or ignores material evidence or when it draws
inferences and conclusions which do not naturally or
logically flow from the proved facts, the appellate court is
bound to interfere with the findings of the trial court. It is
equally well settled that where the trial court has
considered the entire evidence and recorded several
material findings, the first appellate court would not
reverse them on the basis of conjectures and surmises or
without analyzing the relevant evidence in entirety. As the
final court of facts, if the first appellate court is reversing
the judgment of the trial court, it is bound to
independently consider the entire evidence. The High Court
has ignored these well settled principles. In these peculiar
circumstances, we have to examine the correctness of the
findings recorded by the High Court."
(v) Bhagwanbhai Karamanbhai Bharvad v. Arogyanagar
Co-Op. Housing Society Ltd. & Ors. reported in 2004 (1)
GLR 44, para Nos.3, 7, 10 and 18, which read thus:
"3. The brief facts of the case are that the defendants No.
1 to 5 were original owners of the land bearing Survey
No. 864 admeasuring 19602 sq. Mtrs. situated in the sim
of village Vejalpur, District, Sub-District Ahmedabad and
they decided to sell the said land and hence they executed
"bankhai" (agreement to sell) in favour of the plaintiff --
the Arogyanagar Co-operative Housing Society Ltd. After
receiving the entire consideration of Rs. 7,84.080=00 by
cheque and in cash on 2-3-1993. On the same day, they
executed other document i.e. a notorized supplementary
agreement for possession in favour of the plaintiff society.
Irrevocable Specific power of attorney was also executed by
the defendants No. 1 to 5 in favour of one Jayantibhai C.
Patel. They have also executed notorized indemnity bond
and notorized "Sogadhnama" (affidavit). On behalf of the
defendants No. 1 to 5 the power of attorney holder
executed five separate sale deeds on 8-4-1999 in favour of
the plaintiff-society. Those separate five sale deeds were
produced before the Sub-Registrar, for registration on 17-7-
1999. As the plaintiff was not an agriculturist, permission
for transfer of an agricultural land to a person not an
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
agriculturist was required. The permission of transfer of the
land in question Under Section 63 of the Bombay Tenancy
and Agricultural Lands Act, 1948 was granted by the
collector concerned on 24-7-1999. Therefore, aforesaid five
sale deeds were registered on 3-8-1999 by the Sub-
Registrar and thereafter the mutation entries were also
effected on 18-12-1999 in the record of rights i.e. village
form No. 7-12 and other revenue records, and those entries
were certified by Mamlatdar on 1-2-2000. It shows that the
defendants No. 1, 3, 4 and 5 have also executed registered
sale deeds on 26-12-1997 in favour of the defendants No.6
as well as notarized power of attorney in favour of
Amrutbhai and notorized supplementary agreement for
possession was also executed on the same day. The sale
deeds were also executed by the defendants No. 1, 3, 4
and 5 in favour of the defendant No. 6 by the power of
attorney holder on 24-5-1999. Mutation entries were also
made on 31-5-1999 in the reeord of rights of village
Vejalpur Panchayat. The Mamlatdar caneelled the mutation
entry on 24-1-2000 against which an objection was raised
and appeal was filed by one Bharwad against the order of
the Mamlatadar. The Dy. Collector dismissed the appeal
vide order dated 22-2-2001. Thereafter, Revision
Application was filed by Bhagwanbhai Bharwad before the
Gujarat Revenue Tribunal which was also rejected on 8-10-
2002, as per the statement of the learned counsel for the
plaintiff. The Court Commissioner was appointed and his
report dated 20-7-2001 shows that eonstruction of the
Plaintiff on the disputed land.
7. From the above decision of the Apex Court with the
object and reasons for making amendment made in Section
115 of the Code of Civil Procedure taking away the
revisional powers of the High Court it is clear that this
Court can exercise the powers of superintendence over all
lower Courts and tribunals throughout its territory
under Article 227 of the Constitution and can entertain the
writ petition but that power and jurisdiction is
circumscribed and has to be exercised more sparingly only
appropriate cases in order to keep the subordinate Courts
within the bounds of their authority and not correcting
mere errors. The High Court can enter into the question of
facts or look evidence if it is required in the interest of
justice, if there is misdirection in law or view of fact but
the High Court should not interfere with finding of inferior
tribunal except where the findings are perverse and not
based on any material evidence or it has resulted in
manifest injustice.
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
In the case of Ouseph Mathai v. M. Abdul Khadir, reported
in 2002 (1) SCC 319 : (AIR 2002 SC 110) the Apex Court
has accepted the decision of the Supreme Court in the case
Waryan Singh v. Amarnath, reported in AIR 1954 SC 215,
wherein it is held as under :
"The power of superintendence conferred by Article 227 is
to be exercised more sparingly and only in appropriate
cases in order to keep the subordinate Courts within the
bounds of their authority and not for correcting mere
errors."
However, the Supreme Court has also relied on other
decisions and held that the High Court could not, in the
guise of exercising its jurisdiction under Article 227 convert
itself into a Court of appeal when the Legislature has not
conferred a right of appeal. The objects and the reasons of
the Legislature for omitting powers of High Court Under
Section 115 of the C.P.C. and the decisions of the Apex
Court as stated above, ultimately makes it abundantly clear
that the High Court has ample power to exercise its
jurisdiction under Article 227 of the Constitution to
sparingly and in appropriate cases that depends upon facts
and circumstances of each case. Thus, it cannot be said at
this stage that there is total bar and the High Court cannot
exercise its jurisdiction under Article 227 of the
Constitution regarding the orders passed by the Trial Court
or the appellate Court regarding interlocutory orders.
10. In connection with the execution of the sale deeds
made in favour of the plaintiff society by the land owners
through the power of attorney holder Jayantibhai C. Patel.
Learned counsel for the petitioner contended that the
defendant No. 2 has died when the sale deeds were
executed and therefore the sale deeds executed by the
defendants No. 1 to 5 through the power of attorney
holder are illegal at least execution on behalf of the
defendant No. 2 who had died and execution of the sale
deeds on behalf of the defendant No. 2 made in favour of
the plaintiff society is not acceptable, and cannot be
deemed to be legal and valid as at the relevant time the
defendant No. 2 was not alive for execution of the sale
deeds and heirs and legal representatives of deceased
defendant No. 2 have not consented at all for execution of
the sale deeds on behalf of the defendant No. 2 and hence
the sale deeds executed on behalf of the defendant No. 2
in absence of consent of the heirs and legal representative
of the defendant No. 2 are illegal and are not sustain-able
in the eye of law and in view of Section 201 of the
Contract Act the power of attorney has come to an end
and sought terminated at least in respect of the defendant
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
No. 2. In this connection, learned counsel for the
respondent-plaintiff society has pointed out that the
irrevocable power of attorney has already been executed by
the five land owners i.e. defendants No. 1 to 5 on 2-3-
1993. They have also parted with their power in favour of
the power of attorney holder Jayantibhai C. Patel. As such,
once the defendant No. 2 had no power, there would be
no requirement of consent of the heirs and legal
representatives of the defendant No. 2 for execution of the
sale deeds by the power of attorney holder in favour of
the plaintiff society. Considering the facts and
circumstances of the case and material on record I am of
the view that the defendant No. 2 though died there was
no need for the power of attorney holder to obtain the
consent from the heirs and legal representative of the
defendant No. 2 as the presence or absence of the
defendant No. 2 makes no difference in view of the fact
that the defendant No. 2 had already parted his power for
execution of the sale deed in favour of the power of
attorney holder. As such, there is substance in the
contention of the learned counsel for the petitioner.
18. I am in agreement with the contention of the learned
counsel Mr. Mihir Thakor for the respondent that the
agency would not be terminated Under Section 202 of the
Contract Act even after death of the person who has,
authorized, where there is no express contract. for
termination, relied upon the decision of Division Bench of
this Court in the case of Her Highness Shantadevi
Pratapsinh Rao Gaekwad v. Sayjibhai H. Patel reported in
1998 (2) GLR 1521, wherein it is held as under :
"No doubt, in the case of Garapati Venkanna (sic) (supra),
the Madras High Court had held that, where a power of
attorney has been executed by several principals in favour
of a person and one of the principals having distinguished
interest in subject-matter of power of attorney dies, the
death terminates the power of attorney. This view was
taken by the Madras High Court because, the Court found
that there was no authority coupled with an interest and,
therefor, the argument raised on the basis of Section 202
of the Contract Act could not prevail. Here is a case in
which we have already held as above that it was a case of
an agency coupled with interest. In our opinion, the
position of law with reference to Sec. 202 of the Contract
Act is, therefore, very clear that the cases in which the
agency is coupled with interest and there is no express
contract for termination, there cannot be any termination
even by death and, therefore, the factum of death of the
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
principal during the pendency of the suit cannot lead to
the termination of the agency. The necessary ingredients
required under Section 202 of the Contract Act so as to
hold that the agency could not be terminated in the facts
of the present case are, therefore, clearly established and
we also find that even the factum of death of the principal
cannot bring about the termination of the agency."
(vi) Her Highness Maharani Shantadevi v. Savjibhai H.
Patel and Others reported in 1998 (2) G.L.H. 70, paras
Nos.14 to 19 which read as under :
"14. While in the case at hand, the POA did provide in
Clause 13 that it was irrevocable and according to Clause
17 of the MOA, the agreement could not be unilaterally
rescinded after the licensee of the second part has been
put into possession of the property, on a critical analysis of
the authorities as aforesaid, we find that there is no charm
in the use of the word "irrevocable" and whether the
contract could be rescinded and the authority could be
revoked would largely depend upon the question as to
whether the agency was coupled with the interest or not
and as to whether such interest should essentially be pre-
existing, that is, independent of the agreement as such.
Here is a case in which we find on the basis of the three
documents that the main purpose for which the agency
was created was the execution of the scheme for
constructing dwelling units for weaker sections of the
society. With that end in view, the plaintiff-respondent was
to prepare the scheme and get it sanctioned in accordance
with law. It is not the case in which there was any
authority like that of conducting a case before the Court or
a case of spiritual interest or an agency for exploiting the
exhibition of a film. In cases of the agency coupled with
the interest, we find that there is ample authority in
support of the proposition of law that such interest need
not essentially be a pre-existing interest or an interest
independent of it. Interest has to be in the subject-matter
of the agreement. Once it is found that the interest is
created in the subject-matter of the agreement, may be by
the agreement itself, it would still be a case of an agency
coupled with interest, such interest may be created
simultaneously and by the agreement itself and we also
find that in such a case if the rescinding of the contract is
held to be permissible, it would frustrate the very purpose
for which the agreement was made, obviously, the
plaintiff-respondent had an interest to see that the scheme
is executed. Of course, the scheme could be executed only
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
after it had been sanctioned in accordance with law.
Nevertheless, the interest in the execution of the scheme
subject to the condition as aforesaid, which was created by
the agreement, does create a valuable interest in favour of
the plaintiff-respondent and on the basis of the principles
and on the basis of the ratio of the judicial
pronouncements, it is clear that in the case at hand, an
agency was created in which the plaintiff-respondent had
an interest and, therefore, it could not be terminated to
the prejudice of such interest in view of Section 202 of the
Contract Act. The subject-matter of the agency in this case
was the preparation and execution of the scheme under
Section 21 of the Ceiling Act on the property of the
defendant-appellant. May be that the plaintiff-respondent
had no title to such property and he could not claim the
ownership nor could he retain the land in question with
him, but the matter of substance is that, a scheme after
the statutory sanction was to be executed on this land
through the plaintiff-respondent and this by itself was a
valuable interest in this agency for the purpose of the
subject-matter of the agency, that is the scheme itself.
Thus, we have no hesitation in holding that it is a case of
agency coupled with the interest.
15. The second requirement under Section 202 of the
Contract Act against the termination of the agency is the
absence of an express contract. In this regard, strong
reliance has been placed by the learned Counsel for the
defendant-appellant on Clause 17 of the MOA and an
argument was raised that this Clause implies that the
agreement could be unilaterally rescinded by either party
at any time before the licensee of the second part had
been put into possession and admittedly, the plaintiff-
respondent had never been put into possession of the said
property. Except Clause 17, we do not find any Clause in
the MOA enabling the principal to rescind the agreement.
The argument that Clause 17 impliedly authorises the
principal to rescind the MOA, itself shows that there is
absence of an express contract. Express contract would
mean expressed by words in the terms of the agreement
itself. It is the settled principle of law of Interpretation of
Statute that, when the Statute itself uses a particular word,
such word has to be given its full meaning in contradiction
to its negative aspect. By using the word "express contract"
the implied stands automatically excluded and, therefore,
the authority to rescind the agreement cannot be by
implication on the basis of Clause 17. Clause 17 certainly
puts an express embargo against the rescinding of the
agreement after the possession is handed over, but this
embargo cannot be read to clothe the defendant-appellant
with an express power to unilaterally rescind the
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
agreement at any time before the possession is handed
over and the same cannot be read as an express term of
the contract for the purpose of terminating the agreement
at any time prior to the possession. Although the learned
Counsel for the plaintiff-respondent had argued that, apart
from the fact that there was no express contract, this
Clause does not even impliedly empower the original
defendant-appellant to rescind the agreement at any time
at his whim before the possession is handed over and that
unless the scheme was sanctioned under Section 21 of the
Ceiling Act, there was no question of handing over the
possession and, therefore, this Clause 17 becomes operative
only after the scheme is sanctioned and that upto the stage
of obtaining the sanction, everything was to be done by
the plaintiff-respondent and in fact, he by his efforts, had
brought the scheme beyond the stage of approval by the
specified authority and at this stage, the rescinding of the
MOA could not be brought about by the defendant
appellant so as to deny to the plaintiff-respondent the
fruits of his labour, efforts and industriousness. It was
pointedly argued on behalf of the plaintiff-respondent that
even the implied authority to terminate the agreement on
the basis of Clause 17 was not available because Clause 17
itself becomes operative after the handing over the
possession and, therefore, at no stage, prior to the handing
over of the possession of the property, the so-called
implied authority on the basis of Clause 17 could be acted
upon and given effect too. That may or may not be so,
but the fact of the matter in the instant case is that, there
is a total absence of an express term of contract. The
learned Counsel for the defendant appellant cited the case
of State of Rajasthan v. Raghubir Singh and Ors. reported
in AIR 1979 SC 852. In this case, the Supreme Court was
concerned only with a term of the agreement, i.e., neither
the earnest money deposit nor the withheld amount shall
bear any interest. The Supreme Court found that the
provision of non-entitlement of the interest on the withheld
amount implied that the interest was claimable on other
amount. It was not a case with regard to the termination
of the agency or the agreement itself. It was only a
question of interpretation of one of the clauses relating to
the claim under the agreement with regard to interest.
Here is a case in which the rescinding of the contract itself
is sought to be defended on the basis of an implied
authority on the basis of one of the clauses of the
agreement and therefore, this authority is of no avail to
the plaintiff-appellant to show that there was any express
contract for the purpose of termination of the agency. We
thus find that the second requirement under Section 202 of
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
the Contract Act, that is the absence of an express contract
is clearly obtaining in the facts of this case.
16. Once we find that it was a case of agency coupled
with the interest, and there is total absence of an express
contract for the purpose of termination of the agency, the
question arises as to what will be the effect of the death
of the defendant-appellant and as to whether the
agreement can be said to have come to an end or
automatically terminated and authority stands revoked by
the death of the principal during the pendency of the suit
on 1-9-1988.
17. Under Clause 2 of the MOA, the plaintiff-respondent
was appointed, constituted and nominated as the true and
lawful attorney by the owner, that is the defendant-
appellant and on his behalf to do or cause to be done all
acts required for the purpose of execution of the said
scheme and in regard to the said property. This power of
attorney was described to be irrevocable till the whole
scheme is carried out. In the POA, after Clause 13 saying
that the power of irrevocability till the scheme is finally
carried out and executed as per the agreement dated 24th
March 1977, the owner, i.e., the defendant-appellant
mentioned that he for himself, his heirs, executors and
administrators ratifies and confirms and agree to ratify and
confirm whatsoever the said attorney or any substitute or
substitutes acting under him shall do or purport to do or
cause to be done by virtue of this presents. Firstly, by the
very nature of the MOA read with POA and the ACD, we
find that the parties had agreed for the execution of the
scheme for the welfare of the members of the weaker
sections. The scheme was required to have a statutory
sanction and the carrying out of the scheme could not be
intended to cease on account of the unfortunate death of
the owner. It appears that no termination can be brought
about even on account of the death as is clearly provided
in the statutory illustrations given under Section 202 of the
Contract Act. In Halsbury's Laws of England, 4th Edition,
Vol. 1, at page 524 in para 872, it is mentioned as under:
Powers of attorney: Where a power of attorney is expressed
to be irrevocable and is given to secure a proprietary
interest of the donee or the performance of an obligation
owed to the donee, the power is irrevocable either by the
donor without the consent of the donee or by the death,
incapacity, bankruptcy, winding up or dissolution of the
donor, so long as the donee has the interest or the
obligation remains undischarged. A power of attorney given
to secure a proprietary interest may be given to the person
entitled to the interest and persons deriving title under him
to that interest, and those persons will be the duly
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
constituted donees of the power for all the purposes of the
power, without prejudice to any right to appoint
substitutes given by the power.
18. In Bowstead and Reynolds on "Agency", 16th Edition,
at page Nos. 660-661, it has been mentioned that the
authority expressed to be irrevocable is not determined by
death etc. In Chitty on "Contract", 27th Edition, Vol. 2,
page 94-95, the learned Author while dealing with the
"Termination of Authority" has commented that, if there is
an interest coupled with the authority, that is, if the
agreement is entered into by Deed or on sufficient
consideration, whereby an authority is given for the
purpose of providing a security, such an authority is
irrevocable even by death, etc.
19. No doubt, in the case of Garapati Venkanna (supra),
the Madras High Court had held that, where a power of
attorney has been executed by several principals in favour
of a person and one of the principals having distinguished
interest in subject-matter of power of attorney dies, the
death terminates the power of attorney. This view was
taken by the Madras High Court because, the Court found
that there was no authority coupled with an interest and,
therefore, the argument raised on the basis of Section 202
of the Contract Act could not prevail. Here is a case in
which we have already held as above that it was a case of
an agency coupled with interest. In our opinion, the
position of law with reference to Section 202 of the
Contract Act is, therefore, very clear that the cases in
which the agency is coupled with interest and there is no
express contract for termination, there cannot be any
termination even by death and, therefore, the factum of
death of the principal during the pendency of the suit
cannot lead to the termination of the agency. The
necessary ingredients required under Section 202 of the
Contract Act so as to hold that the agency could not be
terminated in the facts of the present case are, therefore,
clearly established and we also find that even the factum
of death of the principal cannot bring about the
termination of the agency.
(vii) Timblo Irmaos Ltd., Margao v. Jorge Anibal Matos
Sequeira and another reported in AIR 1977 Supreme
Court 734 , paragraph 18, which reads as under :
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
"We were then referred to O.A.P.R.M.,A.R..Adaikappa
Chettiar v. Thomas Cook & Son (Bankers) Ltd.,(1) where
the well known principle of ejusdem generis was applied to
hold that general words following words conferring
specifically enumerated powers "cannot be construed so as
to enlarge the restricted power there mentioned". In this
case, the purpose of the general power was subordinated
to the specif- ic powers given which determined the object
of the power of attorney. There is no deviation in this case
from the general rules of construction set out above by us.
We have indicated above that implied powers cannot go
beyond the scope of the general object of the power but
must necessarily be subordinated to it. In fact, in a case
like the one before us, where a general power of
representation in' various business transactions is mentioned
first and then specific instances of it are given, the
converse rule, which is often specifically stated in statutory
provisions (the rules of construction of statutes and
documents being large- ly common), applies. That rule is
that specific instances do not derrogate from the width of
the .general power ini- tially conferred. To such a case the
ejusdem generis rule cannot be applied. The mode of
construing a document and the rules to be applied to
extract its meaning correctly depend upon not only upon
the nature and object but also upon the frame, provisions,
and language of the document. In cases of uncertainty, the
rule embodied in proviso 2 to Section 92 of the Evidence
Act, which is applicable to contracts, can be invoked.
Thus, the ultimate decision, on such a matter, turns upon
the particular and peculiar facts of each case."
(viii) Prema Sudhamani vs. D. Krishna Rao reported in
O.S.A. No.189 of 2007, paras 6, 7, 8 and 11, which read
as under :
"6.It is brought to the notice of this Court that one of the
persons who executed the General Power of Attorney dated
09.05.2005 has expired and therefore, the said power is
not binding. At this stage, the learned counsel for the
appellants urges that as per Section 201 of the Contract
Act on the death or insanity of the (sole) principal the
agency terminates automatically and further that as a rule,
the authority of the agent is revoked by the death of the
principal and the agency comes to an end and any
attempted execution of the authority after that event is not
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
binding. Added further, the learned counsel for the
appellants also cites the decision Garapati Venkanna V.
Mullapudi Atchutaramanna and others AIR 1938 Madras
542 wherein it is laid down as follows:
"Where a power of attorney has been executed by several
principals in favour of a person, and one of the principals
having distinct interest in subject matter of the power of
attorney dies, the death terminates the power of attorney."
7.Per contra, the learned counsel for the respondents
submits that if there are two or more principals and they
are joint and several, and if one of them dies, the agency
terminates only in regard to the representatives of the
deceased principal, but it continues as regards the
surviving principal and in support of his contention, he
places reliance on the decision Monindra Lal Chatterjee V.
Hari Pada Ghose and others AIR 1936 Calcutta 650
wherein it is inter alia held that 'on death one agency
terminates only as regards representative of deceased
principal but continues as regards surviving principal and
that surviving principal may sue for rendition of accounts
within three years of termination of agency as against
him.'
8.He also cites the decision M.Ponnusami Pillai and
another V. Chidambaram Pillai and others Vol.35 M.L.J.
294 wherein it is held that 'A power of attorney given to
an agent by two members of a joint Hindu trading family
is not terminated by the death of one of the members.'
xxx xxx xxx xxx xxx
11.By applying the enunciated legal principles to the
General Power of Attorney dated 09.05.2005, in the matter
in issue, we opine that the said power deed does not get
terminated by virtue of death of one of the executants."
(ix) Monindra Lal Chatterjee V. Hari Pada Ghose and
others reported AIR 1936 Calcutta 650, paras 7, 8 and
9, which read as under:
7. Cases, however, where two or more persons appoint an agent by
the same act or instrument, and where only one of such principals
dies, present difficulties. These cases cannot be answered simply by
the terms of Section 201, Contract Act. The principle that the death
of the principal terminates the agency as embodied in Section
201, Contract Act, is a principle taken from the English law. In
England, however, cases where the appointment of an agent had
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
been made by a firm have presented difficulties when one member of
the firm subsequently died. It has been held that death of one of the
partners does not ipso facto terminate the agency, but the scope of
the agency and the business for which the agent was employed are
material factors: Taskar v. Shepperd (1858) 6 H & N 575 and
Phillips v. Hull Alhambra Palace Co. (1901) 1 K B 59. In Re Sital
Prosad 1917 Cal 436, a case which has been followed by the Madras
High Court in Ponnusami Pillai v. Chidambaram Chettiar 1918 Mad
279, Mookherjee, J. examined the position in detail and laid down
the law in these terms:
We cannot consequently hold as an inflexible rule of law that
whenever two principals appoint an agent to take charge of
some matter in which they are jointly interested, the death of
one terminates the authority of the agent not merely as
regards the deceased, but also as regards the remaining
principal. We have in each case to determine the true
intention of the parties to the contract, from the terms
thereof and from the surrounding circumstances.
8. In that case, as also in Ponnusami Pillai v. Chidambaram
Chettiar 1918 Mad 279, members of a joint Mitakshara family had
appointed one of them as agent for a certain purpose. It was held
that the death of one of the members who had appointed their
coparcener as agent, did not affect the agency at all, the agency
continued not only under the surviving coparceners who had
concurred in the appointment, but also under all the coparceners
including sons and descendants of the deceased coparcener. This
view that the agency continued, so to say, under the joint family as
before, may be due to the special facts of those cases and to the
peculiar position of a joint Mitakshara family. That fact may account
for the continuance of the agency not only under the survivors, but
also under the descendants of the deceased principal, but I do not
see why in other cases the agency should not continue under the
surviving principals only in the absence of any evidence that all the
principals were, as Mookerjee, J. points out, in Re Sital Prosad 1917
Cal 436, and to use his convenient expression, "joint principals" and
not "joint and several principals" and "the power given to the agent
is not joint and several." It may terminate so far as the representative
of the deceased principal is concerned and to that extent only. This
accords with the view taken in Madhusudan Sen v. Rakhal
Chandra 1916 Cal 680, a case which I have already noticed. The
power of attorney which Rakhal Das Sarcar as guardian of his
wards executed in favour of the defendant has not been produced.
The defendant's statement that he never saw it and never knew of its
terms does not seem to me to be either convincing or truthful. If he
wants to maintain the position that the death of Guru Pada
terminated his agency under Hari Pada also, it was incumbent on
him to prove from the terms of the power of attorney, either by
producing the power of attorney or from secondary evidence, that
Guru Pada and Hari Pada were "joint principals" and not "joint and
several principals" in the words of Mookerjee, J. Section
109, Evidence Act, in my judgment, places the the burden of proof on
him.
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
9. I accordingly hold that on the death Of Guru Pada the defendant
continued to be the agent under Hari Pada. The same agency
continued and Hari Pada can by invoking Article 89, Limitation Act,
get accounts from him from 1313 to 1337. On Guru Pada's death,
however, the old agency under him terminated and a new agency
under Guru Pada's son, namely, under plaintiff 2, sprang up.
Plaintiff 2 was bound to sue for accounts of his father's time within
three years of his father's death which occurred in February 1929. If
he had not been a minor at his father's death and at the date of this
suit his claim from 1313 to Magh 1335 (February 1929) would have
been barred by time, but his minority has saved his claim for this
period. Section 6, Limitation Act, covers the case and there is no
need for him to invoke Section 7 at all. I accordingly overrule this
point also. The result is that this appeal is dismissed with costs.
(x) Rajendra Lalitkumar Agrawal vs. Ratna Ashok Mu-
ranjan and another reported in (2019) 3 SCC 378, paras
10 and 11 read as under:
10. It cannot be disputed that the interpretation of any terms and
conditions of a document (such as the agreement dated 08.08.1984 in
this case) constitutes a substantial question of law within the
meaning of Section 100 of the Code. It is more so when both the
parties admit the document.
11. As mentioned above, since the interpretation of documents
constitutes the substantial question of law, the High Court should
have first framed appropriate substantial question(s) arising in the
case especially on the questions in relation to the true intent, rights
and obligations arising from Clauses 3, 5 and 15 of the agreement
dated 08.08.1984 in the context of pleadings and the reversing
findings of the two Courts below and then should have called upon
the respondents to reply to the questions framed keeping in view its
jurisdiction under Section 100(5) of the Code and its proviso.
13.1. Learned Senior Counsel Shri Shelat has also relied
upon following decisions, which are on similar line of
propositions of law, which are referred to hereinabove:
(i) Rajendra Lalitkumar Agrawal vs. Ratna Ashok
Muranjan reported in (2019) 3 Supreme Court Cases
378.
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
(ii) Arvindbhai Dhanjibhai Jobanputra Versus Vijayku-
mar Gaurishankar Thakkar reported in LAWS (GJH)-
2013-1-82.
(iii) Lisamma Antony and Ors. vs. Karthiyayani and
Ors. reported in Manu/SC/0321/2015.
(iv) Jalaram Developers, Through Partner Bhikhabhai
Virajbhai v. Nilaben Mahendrakumar Vaidya and Ors.
reported in 2010 (1) G.L.H. 354.
(v) Ravula Subba Rao and others vs. Commr. of Income
Tax, Madras reported in 1956 Supreme Court 604.
14. Learned Senior Counsel Shri Yatin Oza for the
plaintiff has vehemently submitted that the question
relating to the Power of Attorney is a question of facts
and not a legal question. He has submitted that in
relation to the concerned Power of Attorney and it has
been held by both the Courts below against the
defendants and thus, there is a concurrent finding of
facts by both the courts below and therefore, in a
Second Appeal, this Court may not interfere with the
concurrent findings of facts by both the Courts below.
14.1. He has submitted that the entire defence of the
defendants-appellants is on the Power of Attorney and
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
therefore, since there is a concurrent findings of facts,
there is no substantial questions of law involved in this
appeal. He has submitted that though the questions
have been framed earlier in this matter, on the facts of
the case, no such questions needs to be decided and if
needs to be decided it against the defendants -
appellants.
14.2. He has submitted that whether the Power of
Attorney was executed with interest or not is a question
of fact, which has been decided by both the Courts
below concurrently against the defendants and therefore,
this Court may not interfere with these observations.
He has also submitted that mere of use of word
"interest" in a Power of Attorney does not create any
interest in the property. He has submitted that the
entire Power of Attorney needs to be read as a whole. It
was only given for the administrative management of the
property without any interest of the property. He has
also referred to the suit filed by the defendants and has
submitted that in the said suit, the defendants -
appellants did not refer to the point of creation of any
interest in his favour by virtue of such Power of
Attorney. He has also submitted that in the earlier suit
injunction application of the defendants herein came to
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
be dismissed and one of the author of the Power of
Attorney had died, the Power of Attorney automatically
come to an end. He has submitted that both the Courts
below have properly appreciated the facts and
circumstances of the present case and have rightly
passed the impugned judgment and decree, which does
not call for the interference in this Second Appeal. He
has prayed to dismiss the Second Appeal.
14.3. Learned Senior Counsel Shri Yatin Oza for the
plaintiff while referring to the oral and documentary
evidence as well as the Power of Attorney and the
statements made on behalf of the Counsel for the
defendants - appellants, has vehemently submitted that
in the present case there was no any interest created in
favour of the defendants by virtue of such Power of
Attorney. He has submitted that there must be some
other documents in addition to the Power of Attorney to
substantiate the version of the defendants that interest
in the property was created by the plaintiff. He has
submitted that when the defendants - appellants herein
has filed the previous suit, he had a knowledge that
the Power of Attorney has already been cancelled
otherwise there was no need for him to rush to the
Court for prayer of injunction against the plaintiff herein
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
restraining him from exercising his power vested by
virtue of the Power of Attorney.
14.4. Learned Senior Counsel has also submitted that
though the said suit has been withdrawn it does not
wipe out the pleadings in the said suit. He has
submitted the the principles of estoppel would apply to
the defendants - appellants herein due to his previous
pleadings in the previous suits, wherein he has not
uttered any words regarding creation of interest in his
favour by virtue of such Power of Attorney. He has also
submitted that there was no any averments of payment
of Rs. 61,000/- made in the previous suit. He has
submitted that the previous suit was filed by the
appellants herein on the basis of the Power of Attorney
and in the second Suit his defence is also based upon
the same Power of Attorney. He has also, while
referring to Power of Attorney, vehemently submitted
that there is no averments that the same is irrevocable
and there is no any authority given to the defendant
No.1 for sale of the land in question. While referring to
Section 210 of the Contract Act, he has also submitted
that it is an absolute right of the guarantor to cancel
the Power of Attorney. Regarding applicability of Section
202 of the Contract Act, he has vehemently submitted
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
that it will only apply when interest is created in the
agency. Learned Senior Counsel Shri Oza has also
submitted that in the present case there is no case of
creation of any agency with interest in favour of the
defendants-appellants by the original plaintiff.
14.5. Learned Senior Counsel Shri Oza has also
vehemently submitted that the defendants have not
produced any evidence regarding payment of Rs.61,000/-
or Rs.63,100/- to the plaintiff. He has also submitted
that examination of witnesses by the defendants for such
payment has no relevance as the defendants - appellants
themselves has admitted in their evidence that they have
no documents or evidence as to the payment of
consideration to the plaintiff. Learned Senior Counsel
Shri Oza has vehemently submitted that the Power of
Attorney needs to be read as a whole and on doing so,
it does not reflect that any power was given to the
defendant No.1 for sale of the property or any interest
was created in his favour. He has also submitted that
the sale by the defendant No.1 by virtue of the Power of
Attorney to defendant No.2 who is his own son, speaks
itself that the entire transactions between the father and
son is not a bona fide one, but merely to defeat the
right of the plaintiffs pertaining to the land in question.
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
He has further submitted that since one of the grantor
of the Power of Attorney has died, the Power of
Attorney does not remain in existence. Learned Senior
Counsel Shri Oza has also vehemently submitted that
there is no need of any issuance of Public Notice for
cancellation of Power of Attorney as the grantor can at
anytime cancel it and inform the grantee thereof. He has
stated that in the present case, both the Courts below
have properly considered the oral and documentary
evidence in its true prospective and have not committed
any error of facts and law in passing decree in favour of
the plaintiff. He has submitted that the present appeal
is devoid of the merits and be dismissed with costs.
14.6. Regarding the various decisions relied upon by
Senior Counsel Shri Shelat for the appellants -
defendants, learned Counsel Shri Oza has submitted that
the facts therein are different from the facts of the
present case and therefore, those decisions are not
applicable to the facts of the present case.
14.7. Learned Counsel Shri Oza has relied upon following
decisions for his submission to dismiss the appeal:
(i) Church of Christ Charitable Trust v. Ponniamman
Educational Trust Represented by its
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
Chairperson/Managing Trustee reported in 2012 (8) SCC
706, paragraph 19 to 21, which read thus :
Power of Attorney:
19) Next, we have to consider the power of attorney.
It is settled that a power of attorney has to be strictly
construed. In order to agree to sell or effect a sale by
a power of attorney, the power should also expressly
authorize the power to agent to execute the sale
agreement/sale deed i.e., (a) to present the document
before the Registrar; and (b) to admit execution of the
document before the Registrar. A perusal of the power
of attorney, in the present case, only authorizes
certain specified acts but not any act authorizing
entering into an agreement of sale or to execute sale
deed or admit execution before the Registrar.
20. In a recent decision of this Court in Suraj Lamp
and Industries Pvt. Ltd. vs. State of Haryana and
Another (2012) 1 SCC 656, the scope of power of
attorney has been explained in the following words:
"20. A power of attorney is not an
instrument of transfer in regard to any right,
title or interest in an immovable property. The
power of attorney is creation of an agency
whereby the grantor authorises the grantee to
do the acts specified therein, on behalf of
grantor, which when executed will be binding
on the grantor as if done by him (see Section
1-A and Section 2 of the Powers of Attorney
Act, 1882). It is revocable or terminable at any
time unless it is made irrevocable in a manner
known to law. Even an irrevocable attorney
does not have the effect of transferring title to
the grantee.
21. In State of Rajasthan v. Basant Nahata, (2005) 12
SCC 77. this Court held: (SCC pp. 90 & 101, paras 13
& 52)
"13. A grant of power of attorney is essentially
governed by Chapter X of the Contract Act. By
reason of a deed of power of attorney, an agent
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
is formally appointed to act for the principal in
one transaction or a series of transactions or to
manage the affairs of the principal generally
conferring necessary authority upon another
person. A deed of power of attorney is executed
by the principal in favour of the agent. The
agent derives a right to use his name and all
acts, deeds and things done by him and subject
to the limitations contained in the said deed,
the same shall be read as if done by the donor.
A power of attorney is, as is well known, a
document of convenience.
* * *
52. Execution of a power of attorney in terms
of the provisions of the Contract Act as also the
Powers of Attorney Act is valid. A power of
attorney, we have noticed hereinbefore, is
executed by the donor so as to enable the
donee to act on his behalf. Except in cases
where power of attorney is coupled with
interest, it is revocable. The donee in exercise
of his power under such power of attorney only
acts in place of the donor subject of course to
the powers granted to him by reason thereof.
He cannot use the power of attorney for his
own benefit. He acts in a fiduciary capacity.
Any act of infidelity or breach of trust is a
matter between the donor and the donee."
An attorney-holder may however execute a deed of
conveyance in exercise of the power granted under
the power of attorney and convey title on behalf of
the grantor."
21. It is clear that from the date the power of
attorney is executed by the principal in favour of the
agent and by virtue of the terms the agent derives a
right to use his name and all acts, deeds and things
done by him are subject to the limitations contained
in the said deed. It is further clear that the power of
attorney holder executed a deed of conveyance in
exercise of the power granted under it and conveys
title on behalf of the grantor.
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
(ii) Mahesh Govindji Trivedi v. Legal heirs of Bhagvanji
Govindji Trivedi & 5 Ors reported in (2014) 2 GLR
1482, paragraph 18, whcih reads thus:
"19. It would appear from the above that if the interest in
favour of the donee is created in the deed of power of
attorney or if such interest is passed on in favour of
donee, then such deed becomes irrevocable and even the
death of donor would have no vitiating effect or
consequence on the deed. It may also be noted that
creation of such interest need not necessarily be in the
deed of power of attorney itself and expression of such
creation of interest or recognition of interest by the donor
may be in the form of separate deed in this regard. In the
other words, donor may have expressed his/her intention
of conferring or creating interest upon the donee by
executing separate simultaneous deed. What is important
and determinative is the intention of the donor, and
secondly expression of such intention should be either in
the deed of power of attorney itself or in another deed
executed simultaneously. It is for the party who asserts the
deed to be irrevocable to show and establish that it is not
revocable in its nature. The burden would be heavier on
the party to explain when such interest is not transferred
or created specifically in the said deed and/or when it is
not simultaneously conferred or created. In the present
case, it would appear that the donor had executed power
of attorney in favour of donee (deft.no.1) mainly because
the donor herself cannot remain present for execution of
transaction in respect of her property and Trusts property.
In the deed (exh.97), the donor has not even remotely
expressed an intention to create or transfer any interest in
favour of the donee. In absence of creation or transfer of
interest in the property, it cannot be said that donor
intended to execute irrevocable power of attorney.
Although the deed in the heading is referred as irrevocable
power of attorney, mere referring and labeling as
irrevocable would not make the deed irrevocable. Reading
of the deed (Exh.97) leaves no doubt that it is not
irrevocable."
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
(iii) Gurnam Singh (D) by Lrs. & Ors. v. Lehna Singh
in Civil Appeal No. 6567 of 2014 (decisions of Hon'ble
Apex Court) paragraph 13.1 and 18, which read thus :
"13.1. The suspicious circumstances which were considered by the
learned Trial Court are narrated/stated hereinabove. On re-
appreciation of evidence on record and after dealing with each
alleged suspicious circumstances, which were dealt with by the
learned Trial Court, the First Appellate Court by giving cogent
reasons held the Will genuine and consequently did not agree with
the findings recorded by the learned Trial Court. However, in
Second Appeal under Section 100 of the CPC, the High Court, by
impugned judgment and order has interfered with the Judgment and
Decree passed by the First Appellate Court. While interfering with
the judgment and order passed by the first Appellate Court, it
appears that while upsetting the judgment and decree passed by the
First Appellate Court, the High Court has again appreciated the
entire evidence on record, which in exercise of powers under Section
100 CPC is not permissible. While passing the impugned judgment
and order, it appears that High Court has not at all appreciated the
fact that the High Court was deciding the Second Appeal under
Section 100 of the CPC and not first appeal under Section 96 of the
CPC. As per the law laid down by this Court in a catena of decisions,
the jurisdiction of High Court to entertain second appeal under
Section 100 CPC after the 1976 Amendment, is confined only when
the second appeal involves a substantial question of law. The
existence of 'a substantial question of law' is a sine qua non for the
exercise of the jurisdiction under Section 100 of the CPC. As
observed and held by this Court in the case of Kondiba Dagadu
Kadam (Supra), in a second appeal under Section 100 of the CPC,
the High Court cannot substitute its own opinion for that of the First
Appellate Court, unless it finds that the conclusions drawn by the
lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on inadmissible evidence or no evidence.
18. Before parting with the present judgment, we remind the High
Courts that the jurisdiction of the High Court, in an appeal under
Section 100 of the CPC, is strictly confined to the case involving
substantial question of law and while deciding the second appeal
under Section 100 of the CPC, it is not permissible for the High
Court to re-appreciate the evidence on record and interfere with the
findings recorded by the Courts below and/or the First Appellate
Court and if the First Appellate Court has exercised its discretion in
a judicial manner, its decision cannot be recorded as suffering from
an error either of law or of procedure requiring interference in
Second Appeal. We have noticed and even as repeatedly observed by
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
this Court and even in the case of Narayanan Rajendran v. Lekshmy
Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this
Court and even the mandate under Section 100 of the CPC, the High
Courts under Section 100 CPC are disturbing the concurrent
findings of facts and/or even the findings recorded by the First
Appellate Court, either without formulating the substantial question
of law or on framing erroneous substantial question of law.
Therefore, we are constrained to observe as above and remind the
High Courts the limitations under Section 100 of the CPC and again
hope that High Courts would keep in mind the legal position before
interfering in Second Appeal under Section 100 of the Code of Civil
Procedure."
(iv) Mallanaguoda and Ors. v. Ninganagouda and Ors in
Civil Appeal No. 805 of 2021 (decisions of Hon'ble Apex
Court), paragraph 10, which reads thus:
"10. The First Appellate Court is the final Court on facts.
It has been repeatedly held by this Court that the
judgment of the First Appellate Court should not be
interfered with by the High Court in exercise of its
jurisdiction under Section 100 CPC, unless there is a
substantial question of law. The High Court committed an
error in setting aside the judgment of the First Appellate
Court and finding fault with the final decree by taking a
different view on factual findings recorded by the First
Appellate Court. That apart, the High Court did not give
any reason to substantiate the finding that the land in
Block No.5 has non-agricultural potentiality, especially
when the First Appellate Court refused to accept the said
contention by rejecting the application filed under Order
41 Rule 27 by the Respondents. In the normal course, we
would have set aside the judgment of the High Court and
remanded the matter back for fresh consideration.
However, taking into account the fact that the preliminary
decree was passed way back in 2002 and the Appellants
have not been able to enjoy the fruits of the decree, we
have examined the correctness of the judgment of the First
Appellate Court."
(v) Manubhai Chhotabhai Patel v. Manubhai Motibhai
Patel-died-through his heirs and L.R. in Civil Application
No. 2 of 2019 in Second Appeal No. 202 of 2015
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
(decisions of Hon'ble Apex Court). In the present case,
the said IA Judgment came to be confirmed by the
Hon'ble Apex Court in Special Leave to Appeal No.
14367 of 2019 dated 08.07.2019.
(vi) Kalyan Singh Chouhand v. C.P. Joshi reported in
A.I.R. 2011 SC 1127.
(vii) Anathula Sudhakar v. P. Buchi Reddy (Dead) by
LRs. and Ors. reported in A.I.R. 2008 SC 2033.
15. Learned Senior Counsel Shri Sanjanwala for the
respondent No.2 has submitted that considering the facts
of the case there is no substantial questions of law is
involved. He has submitted that the questions raised by
the appellant relating to the Power of Attorney are
questions of facts. He has submitted that in the present
case, the alleged Power of Attorney was not having
created any interest in favour of the appellant. He has
submitted that by mere use of word "interest" that fact
does not itself create any interest in favour of the Power
of Attorney. While referring to the Power of Attorney at
Exh. 18, learned Senior Counsel Shri Sanjanwala has
submitted that it was only for the purpose of
administration of land and there was no creation of any
interest in favour of the plaintiff.
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
15.1. Shri Sanjanwala has also submitted that even in
the previous suit, the appellant has not claimed any
creation of interest in property by virtue of alleged
creation of interest. He has submitted that the
impugned order passed by both the Courts below was
proper and there is concurrent findings of facts since
substantial questions of law is involved in the Second
Appeal, the Second Appeal may kindly be dismissed with
costs.
16. In Rejoinder, learned Senior Counsel Shri Shelat for
the defendants-appellants has vehemently submitted that
the decisions cited by the otherside is not applicable to
the present case. He further relied upon the decision of
the Apex Court in the case of Timblo Irmaos Ltd.
(supra) and has prayed to allow the present appeal by
setting aside the judgments and decrees of the both the
Courts below.
17. Having considered the submissions made on behalf
of the both the sides coupled with the evidence as well
as the impugned judgment of both the Courts below as
well as the pleadings and oral and documentary evidence
on record and the various decisions cited at bar, it
emerges that the entire question devolves upon the
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
interpretation of the Power of Attorney. It is an
admitted facts that the land in question originally
belongs to one Motibhai Hirabhai and after his death it
was of the plaintiff and his mother Chanchalben. There
is also no dispute regarding the execution of Power of
Attorney on 29.03.1989 by plaintiff and his mother in
favour of the defendant No.1. It is also undisputed facts
that Chanchalben has died.
18. It is also an admitted facts that prior to filing of
the present Special Civil Suit No.31 of 1999 by the
plaintiffs, the defendants - appellants herein has
instituted previous suit in year 1996 against the
plaintiffs of the present suit on the basis of the said
Power of Attorney.
19. It is well settled principles of the interpretation
that process of interpretation is process of providing
meaning of words and their effectiveness as medium to
communicate a particular thoughts. It is by the process
of interpretation that the Court interpret any statute or
any given documents. It is well settled that in a process
of interpretation the entire documents needs to be read
as a whole. There cannot be any piece-meal
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
interpretation of averment made in the documents or
statute. The intention of the maker of the documents is
to be gathered by reading the documents as a whole. If
there is conflicting clauses in document or statute, then
it has to be read harmoniously to avoid the situation
whereby any of the provision becomes otios. The various
rules of interpretation are guidelines for interpretation of
statute and that of documents. Those rules do not
override language of document, where the language is
clear. They are only lights to enable the judges to
understand what the statute is. It is compendious Rules
of interpretation can only be regarded as mere to
interpretation guides and ought to be applied as if there
was statutory process enacted with all decisions on
proviso of the legislation. The Court should invoke
whichever of the rules produce a result that satisfy it
sense of justice to approach before it.
20. Learned Senior advocate Shri Shelat has also relied
upon Section 3 of the Power of Attorney Act, 1882.
Section 3 of the Act provides as under:
"3. Payment by attorney under power, without notice of
death, etc., good.--Any person making or doing any
payment or act in good faith, in pursuance of a power-of-
attorney, shall not be liable in respect of the payment or
act by reason that, before the payment or act, the donor
of the power had died or become 4 [***] of unsound mind,
4 [***] or insolvent, or had revoked the power, if the fact
of death 4 [***] unsoundness of mind, 4 [***] insolvency
or revocation was not, at the time of the payment or act,
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
known to the person making or doing the same. But this
section shall not affect any right against the payee of any
person interested in any money so paid; and that person
shall have the like remedy against the payee as he would
have had against the payer, if the payment had not been
made by him. This section applies only to payments and
acts made or done after this Act comes into force."
The section provides for protection of the payee. It
did not apply when the Power of Attorney holder exceed
its limit as per the power granted to him by the
instrument. Admittedly, in the present case though the
Notice has been issued to the wrong address to the
appellants by the plaintiff, in view of the suit filed by
the appellants on the basis of the Power of Attorney
clearly suggests that he has knowledge of cancellation of
the Power of Attorney by the plaintiff. Therefore,
recourse to Section 3 is not available to the appellants
herein.
21. In view of the decisions rendered in the case of
Suraj Lamp and Industries Private Limited ( vs. State of
Haryana & Anr., AIR 2012 SC 206, the scope of Power
of Attorney has been explained, wherein para 20 reads
as under:
"20. A power of attorney is not an instrument of transfer
in regard to any right, title or interest in an immovable
property. The power of attorney is creation of an agency
whereby the grantor authorises the grantee to do the acts
specified therein, on behalf of grantor, which when
executed will be binding on the grantor as if done by him
(see Section 1-A and Section 2 of the Powers of Attorney
Act, 1882). It is revocable or terminable at any time unless
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
it is made irrevocable in a manner known to law. Even an
irrevocable attorney does not have the effect of transferring
title to the grantee.
22. In view of the aforesaid pronouncements it clearly
transpires in the present case also that the Power of
Attorney, which was granted in favour of the defendant
No.1-Appellant, herein was not coupled with the interest
and therefore, the grantor was well within his power to
cancel it at any point of time. Admitted in this case,
the defendants had knowledge regarding cancellation of
such Power of Attorney by the plaintiff as he himself
has filed suit for carrying out activity on the basis of
alleged Power of Attorney.
23. Considering the Rules of interpretation, if we
consider the Power of Attorney at Exh.18, it clearly
transpires that it was executed by Manubhai and
Chanchalben Motibhai on 29.03.1989. It is a general
Power of Attorney. On perusal of it, it appears that the
general Power has been given to the defendant No.1 to
do the general work related to the land in question,
which includes to file any applications before any Civil,
Criminal or Revenue Authority, Appellate Court and to
sign documents in a registration office, Panchayat office
or any other office on behalf of the grantors. There is
also recital that the grantee was entitled to issue
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
necessary receipt of amount on behalf of the grantor.
It also reveals from it that the general Power given to
the grantee to do all works before any authority on
behalf of the grantor. However, there is no any
averments reflecting the right of the selling of the
property given to the grantee by the grantor. Of course,
in the last three lines only at one point the word
"interest" is use, but there is no averments that it is a
irrevocable Power of Attorney. On appreciating the
entire Power of Attorney, it clearly reflects that there
was no creation of any sort of interest in favour of the
grantee by the grantor. This is a general Power of
Attorney given to the defendant No.1. Further, it clearly
appears that both the Courts below have properly
considered the Power of Attorney. Thus, the Courts below
have not committed any error of facts and law in
interpreting the alleged power of attorney. Even there is
no recital in the said Power of Attorney that any
consideration has been paid by the grantee to the
grantor. Under this circumstances, since the Power of
Attorney was not coupled with any interest, the death of
one executor will not entitle the grantee to act on her
behalf. Moreover, this being the general Power of
Attorney, the grantor can at any point of time, cancel it.
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
At this juncture, it is also pertinent to note that there
is no dispute regarding filing of the suit by the
appellants against the plaintiff of this matter on the
basis of this very Power of Attorney and the same has
not been controverted by the defendants. It reflects that
though the cancellation of Power of Attorney was sent by
the plaintiff to the defendants on wrong address,
defendants - appellants had knowledge of such notice as
by filing Civil Appeal No.125 of 1996 he has challenged
the action of the plaintiff herein in disturbing him from
acting upon the Power of Attorney. This action on the
part of the defendants - appellants clearly suggests that
he has a knowledge of the cancellation of the Power of
Attorney by the plaintiff herein.
24. Learned Senior Counsel Shri Shelat has also relied
upon Section 202 of the Contract Act for his proposition
that plaintiff had no authority to cancel the Power of
Attorney as it was coupled with the interest in favour of
the appellant. Section 202 of the Contract Act provides
as under :
202. Termination of agency, where agent has an interest in
subject-matter.--Where the agent has himself an interest in the
property which forms the subject-matter of the agency, the agency
cannot, in the absence of an express contract, be terminated to
the prejudice of such interest. --Where the agent has himself an
interest in the property which forms the subject-matter of the
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
agency, the agency cannot, in the absence of an express contract,
be terminated to the prejudice of such interest." Illustrations
(a) A gives authority to B to sell A's land, and to pay himself,
out of the proceeds, the debts due to him from A. A cannot
revoke this authority, nor can it be terminated by his insanity or
death. (a) A gives authority to B to sell A's land, and to pay
himself, out of the proceeds, the debts due to him from A. A
cannot revoke this authority, nor can it be terminated by his
insanity or death."
(b) A consigns 1,000 bales of cotton to B, who has made
advances to him on such cotton, and desires B to sell the cotton,
and to repay himself out of the price the amount of his own
advances. A cannot revoke this authority, nor is it terminated by
his insanity or death. (b) A consigns 1,000 bales of cotton to B,
who has made advances to him on such cotton, and desires B to
sell the cotton, and to repay himself out of the price the amount
of his own advances. A cannot revoke this authority, nor is it
terminated by his insanity or death."
24.1. For applicability of Section 202 of the Contract
Act, there must be an agency created between the
parties. Of course, by executing a Power of Attorney by
one person in favour of the other, the relationship
between them would be like a principal and an agent. In
such eventuality, the power of the agent would be
subject to this instrument of agency created between the
parties. Now, as observed hereinabove, on constructions
of the Power of Attorney it is clearly reveals that it
was a general Power of Attorney without any interest
created in favour of the appellant herein. Since there
was no interest created in the property specifically in the
alleged Power of Attorney documents, the grantor had
every authority to cancel it at any point of time. There
was no restrictive recital in the Power of Attorney
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
restricting the rights of the grantor against cancellation
of the said Power of Attorney. It was not irrevocable
Power of Attorney but it is a simple, general Power of
Attorney giving the authority to the appellants to act on
behalf of the plaintiff for the certain purposes relating
the property in question without any interest in favour
of the grantee. Therefore, Section 202, which has been
relied upon by the learned Senior Counsel Shri Shelat
has no bearing upon the alleged power of attorney.
25. It also reveals from the record that it is the case
of the defendants that he has paid an amount of
consideration of Rs. 63,100/- to the plaintiff and for this
purpose he has examined witness. On perusal of his own
oral and documentary evidence, it clearly transpires that
he has admitted that he has no any documentary
evidence to support factum of the consideration paid to
the plaintiff. At this juncture, it is pertinent to note
that so far as the factum of payment of consideration to
the plaintiff is concerned, it is the questions of facts,
which are concurrently decided by both the Courts below
against the defendants are in favour of the plaintiff.
26. Therefore, this being the Second Appeal as the
Second Appellate Court - this Court cannot interfere with
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
the such concurrent findings of facts which are based
upon proper appreciation of oral and documentary
evidence.
27. Considering the facts and circumstances of the case,
it is clearly found that there is no question of any
applicability of Power of Attorney as irrevocable and the
defendants had agreed to act upon it against the interest
of the plaintiff. On perusal of the entire pleadings as
well as oral and documentary evidence placed before the
learned Trial Court and the judgment and decree of the
both the Courts below, it clearly transpires that both the
Courts below have properly appreciated the evidence on
record and has properly interpreted the Power of
Attorney and have not committed any error in facts and
law in passing judgment and decree in favour of the
plaintiff and against the present appellants - defendants.
Under the facts and circumstances of the case, therefore,
I have decided all the points in negative accordingly.
28. In view of the above, the present appeal deserves to
be dismissed and resultantely, I pass the following order
in the interest of justice:
ORDER
C/SA/202/2015 CAV JUDGMENT DATED: 15/06/2022
(i) The present appeal stands dismissed.
(ii) Considering the facts and circumstances of the case,
parties are directed to bear their respective costs of the
present appeal.
(iii) Decree to be drawn accordingly.
(iv) Alongwith the copy of this judgment and decree, R
& P be sent back to the Trial Court.
Sd/-
(DR. A. P. THAKER, J)
KUMAR ALOK
