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TMI Blog2011 (12) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... illage:Gota, Ta:Daskroi, Dist:Ahmedabad. 2.2 The petitioners instituted Regular Civil Suit No. 93 of 1999 against respondent nos. 2 to 6 for a declaration to the effect that the agreement to sale executed by the petitioners in favour of respondent nos.1, 2 and 3-original defendant nos.1, 2 and 3 be declared as false, illegal and void. 2.3 It appears from the record that during the pendency of the suit, respondent nos. 4, 5 & 6 were impleaded as party-defendants and further prayer was added to declare the sale-deeds dated 10.05.1999 with respect to the suit lands executed by the petitioners in favour of respondent nos. 4, 5 and 6 be declared illegal and void. It is important to note that the suit, which was preferred by the petitioners being Regular Civil Suit No. 93 of 1999 was through a constitute power of attorney i.e. respondent no.1 herein. 2.4 It is the case on behalf of petitioners that in respect of the suit properties, the respondent no.1-the power of attorney of the petitioners, at one point of time, produced various instruments in the form of power of attorneys said to have been executed by the petitioners. It is the case on behalf of petitioners that on 30.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that close reading of the power of attorney would suggest that no interest has been created, of any nature, in favour of respondent no.1 and same cannot be termed as irrevocable power of attorney. 6. She further submits that nomenclature i.e. mere use of word 'irrevocable' in a power of attorney will not make the power of attorney 'irrevocable' unless the terms thereof, disclose that it created or recognized an agency coupled with interest in favour of an agent. She further submitted that on the other hand, a power of attorney executed in favour of an agent recording or recognizing an interest of the agent/attorney in the property, which is the subject matter of the agency, cannot be revoked or terminated even if the instrument does not state specifically that it is irrevocable, as then it would be a power coupled with an interest. In short, her submission is that mere title on a document is not sufficient to construe that the power of attorney is irrevocable or revocable. 7. She further brought to the notice of the Court that on 19.08.2003, Kishorchand and others preferred Suit No. 213/2003 seeking specific performance of agreement for sale dated 11.09. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer of Attorney". However, while construing the document one cannot just go by the title to the document or the nomenclature, but, Court owes a duty to see the substance of the document. 12. When the Court is called upon to interpret the document, it looks at its language. If the language is clear and unambiguous and applies to actual existing facts, it shall accept the ordinary meaning. In case of Kamla Devi Vs. Takhatmal, reported in AIR 1964 SC 859, wherein considering the scope of Section 94 to 98 of the Indian Evidence Act, the Hon'ble Supreme Court has held (at Page 863 of AIR) that: "These observations only apply the well settled rule of construction of documents to a surety bond. Sections 94 to 98 of the Indian Evidence Act afford guidance in the construction of documents; they also indicate when and under what circumstances extrinsic evidence could be relied upon in construing the terms of a document. Section 94 of the Evidence Act lays down a rule of interpretation of the language of a document when it is plain and applies accurately to existing facts. It says that evidence may be given to show that it was not meant to apply to such facts. When a court is asked to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it an irrevocable power of attorney. At the same time, even if there is no title to show that the power is an irrevocable power, but, the substance of the entire document would suggest that the same is an irrevocable power coupled with interest. Therefore, a document has to be construed as a whole. A stray sentence here and there cannot be picked out to construe a document. To understand the tenor of the document and the intention of the parties, it has to be read as a whole. The real intention of the parties has to be covered not merely from what ex-facie is stated in the document, but, from the totality of the recitals in the document. At this stage, I may quote with profit a very lucid judgment rendered by learned Single Judge of Madras High Court explaining the general principles regarding the construction of power of attorney. In case of Anantha Pillai Vs. Ratiinasabapatiiy Mudaliar, reported in 1968 (2) MLJ 574, Ismail, J. (as he then was), held thus: "The general principles regarding the construction of power of attorney are well settled. Powers of attorney must be strictly construed as giving only such authority as they confer expressly or by necessary implication. Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al powers must be necessarily employed." In the above context, the Apex Court in that context held thus:" We think that perhaps the most important factor in interpreting a power of attorney is the purpose for which it is executed. It is evident that the purpose for which it is executed must appear primarily from the terms of the power of attorney itself , and, it is only if there is an unresolved problem left by the language of the document, that we need consider the manner in which the words used could be related to the facts and circumstances of the case or the nature or course of dealings. We think that the rule of construction embodied in proviso 6 to Section 92 of Evidence Act, which enable the Court to examine the facts and surrounding circumstances to which the language of the document may be related." 14. In light of the above pronouncement of the Apex Court and the pronouncement of Ismail, J. on consideration of the power of attorney, which is a subject matter of dispute in the present case, this Court has no doubt in its mind that the power of attorney cannot be termed as an irrevocable power coupled with interest created in favour of respondent no.1. 15. What weighe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1872). 19. In this context, reference may be made to the following passage from the decision of the Andhra Pradesh High Court, in M. John Kottaiah Vs. A.Divakar, AIR 1985 Andhra Pradesh 30 (Para-20) "From the passage quoted above, it clear that if on a construction of the power of attorney and in the light, of the facts and circumstances obtaining in the case, the document does not prima-facie satisfy the requirements for the creation of a power coupled with interest, then merely because the document itself describes the agency to be an irrevocable one, it does not become an irrevocable agency. The Indian Contract Act also provides that in cases where the period of agency is prescribed and the agency is not, in law irrevocable, then the agent may have a cause of action against the principal for other remedies, in case the agency is revoked within the period. But that does not mean that an agency described as being irrevocable is to be treated as an irrevocable (one) if, in law, it does not satisfy the requirements of an irrevocable power of attorney" 20. Bowsted on Agency (14th Edition) at pages 423 succinctly states when an authority given to an Agent is irrevocable. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a2005 (12) SCC 77, this Court held:" 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 is 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. 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. Execution of a power of attorney in terms of the provisions of the Contract Act as also the PowersofAttorney Act is valid. A power of attorney, we have noticed herein before, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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