Gujarat High Court
Narendrabhai Bababhai Rathod & vs Special Secretary (Revenue Dept.) & 3 on 8 August, 2014
Author: Sonia Gokani
Bench: Sonia Gokani
C/CA/11732/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR ORDERS) NO. 11732 of 2013
In SPECIAL CIVIL APPLICATION NO. 12988 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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NARENDRABHAI BABABHAI RATHOD & 10....Applicant(s)
Versus
SPECIAL SECRETARY (REVENUE DEPT.) & 3....Respondent(s)
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Appearance:
MR PRATIK Y JASANI, ADVOCATE for the Applicant(s) No. 1 - 11
GOVERNMENT PLEASDER FOR RESPONDENT-STATE.
MR MB GANDHI, ADVOCATE for the Respondent(s) No. 4
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CORAM: HONOURABLE MS JUSTICE SONIA
GOKANI
Date : 08/08/2014
Page 1 of 37
C/CA/11732/2013 CAV JUDGMENT
CAV JUDGMENT
1. The present applicants are the original petitioners in Special Civil Application No.12988 of 2009 and the opponent Nos.1 to 3 in the present application are the original respondents. The opponent No.4 herein, as a power of attorney of the applicants, has preferred above referred petition for and on behalf of the petitioners challenging the order dated December 17, 2008/ December 22, 2008 passed in Revision Application No.MVV/HKP/AMD/ 59/08. The challenge is made to the order of the Principal Secretary (Appeals), Revenue Department, rejecting the Revision Application preferred by the power of attorney holder of the applicants and thereby confirming the order of the Collector, Ahmedabad dated February 29, 2008.
2. The brief facts necessary for adjudicating the dispute between the parties are as follows : Page 2 of 37 C/CA/11732/2013 CAV JUDGMENT
2.1 The applicants are the agriculturists and the coowners of the ancestral property situated at Mauje Kamod, Taluka Daskroi, District Ahmedabad, bearing Survey No.117, (Block No.98), admeasuring 9 Acres 13 Gunthas (hereinafter referred to as 'the said land').
It is the case of the applicants that they are cultivating the land from the time of their forefathers, who jointly purchased the said land by a registered sale deed dated May 13, 1961 from one Bharwad Amrabhai Punabhai. The Revenue record reflects the mutation entry No.556 dated May 14, 1962, which was certified on January 07, 1963.
2.2 According to the applicants, their land is under the head of "restricted tenure", however, no condition is attached in connection with the said land.
2.3 It the case of the applicants that the District Inspector Land Records vide its communication dated October 08, 2007 addressed Page 3 of 37 C/CA/11732/2013 CAV JUDGMENT to the District Collector, Ahmedabad, had indicated the nature of the tenure of the land as "old tenure". However, at the time of promulgation of the revenue record, which was revised, the words "restricted nature of tenure" were written by the concerned authority since the year 197374. It is the case of the petitioners that such entry was made in the revenue record in the year 197374 and continued thereafter. Although the land is reflected to be of restricted tenure, there is insufficient proof to establish such details considering consistent revenue records from the year 1936. The Review Application preferred by the petitioners before the Collector came to be rejected on February 29, 2008, which was challenged by way of Revision and the impugned order confirmed such order of Collector and, therefore, such petition challenging the impugned order.
2.4 As can be noted from the petition, the present applicants through their power of Page 4 of 37 C/CA/11732/2013 CAV JUDGMENT attorney Shri Hasmukhbhai Patel, respondent No.4 herein, has preferred such petition. In the present application, a request is made inter alia to delete the names of the present applicants from the causetitle of Special Civil Application No.12988 of 2009 and if permissible under the law to continue the opponent No.4power of attorney holder to proceed with the petition in his individual capacity. It is the case of the applicants that during the pendency of the petition, the opponent No.4 acted against the interest of the applicants and, therefore, the applicants have chosen to revoke/ cancel the said power of attorney by following the requisite method and necessary substantiating documents pertaining to cancellation of power of attorney also have been brought on record. Therefore, according to them, from June 29, 2006, such power of attorney does not exist. It is also urged that Special Civil Application No.12988 of 2009 has been filed pursuant to the said power of attorney which is no more in existence. It is Page 5 of 37 C/CA/11732/2013 CAV JUDGMENT also the say of the applicants that the opponent No.4 has initiated proceedings against the present applicants in the Court of the learned Principal Civil Judge, Ahmedabad Rural being Special Civil Suit No.249 of 2012 with respect to the said land, which according to the applicants is of the ownership of the applicants.
2.5 It is also the say of the applicants that the opponent No.4 neither disclosed the fact regarding execution of the power of attorney dated June 29, 2006 nor has he disclosed the fact about filing of the suit being Special Civil Suit No.249 of 2012 against the present applicants and such nondisclosure itself is indicative of his alleged illintention and, therefore, by preferring present application, the following reliefs are sought :
"11(A) Your Lordships be pleased to allow this Civil Application, in the interest of justice;Page 6 of 37 C/CA/11732/2013 CAV JUDGMENT
(B) Your Lordships be pleased to delete the names of the present applicants from the cause title of SCA No.12988/2009 and if permissible, petition may be continued alone in the name of the Opponent No.4 in his individual capacity and not in the capacity of the power of attorney holder of the present applicants, in the interest of justice and equity;
(C) Your Lordships be pleased to grant such other and further reliefs as deemed fit in the interest of justice."
3. The learned advocate Mr.Mehul Shah appearing with the learned advocate Mr.Pratik Jasani for and on behalf of applicantsoriginal petitioners fervently urged that the power of attorney granted in favour of the opponent No.4 was revocable. It is an instrument which was always revocable in nature, which can be revoked or terminated at any point of time. The opponent No.4 in any manner can continue to put at rest the power of attorney for and on behalf of the applicants. He further urged that not only no interest is created in favour of the opponent Page 7 of 37 C/CA/11732/2013 CAV JUDGMENT No.4 while executing the document, but reading of the instrument would reveal clearly that such document could be easily revoked. He urged that a Special Civil Suit No.249 of 2012 has already been preferred by the opponent No.4 and others against the present applicants, which is also indicative of the fact that there is a serious dispute in connection with the grant of powers in favour of the opponent No.4. Subject to the outcome of such suit, the rights of the parties would be decided, however, as can be culled out from the suit itself, the opponent No.2 is the plaintiff No.3, whereas the plaintiff Nos.1 and 2 respectively are the father of respondent No.4 and his relative, which further vindicates the stand of the applicants that misuse has been made of such document. According to the learned advocate, whatever may be the outcome of such suit, presently the applicants are not desirable to allow their names to be used as petitioners and the opponent No.4 if can stand on his own legs, he may continue the proceedings. He has sought to rely on the decision rendered by the Page 8 of 37 C/CA/11732/2013 CAV JUDGMENT Apex Court in the case of Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana and another, reported in AIR 2012 SC 206. He has also relied on the decision of the Gujarat High Court rendered in the case of Manubhai Prabhudas Patel and others v. Jayantilal Vadilal Shah and others, reported in 2012(1) GLH 565 and also the decision of Madras High Court in the case of Mutharasu Thevar v. Mayandi Thevar and others, reported in AIR 1968 Madras 333.
4. Per contra, Mr.M.B. Gandhi, learned counsel appearing for the power of attorney holder has fervently objected to grant of such application. According to Mr.Gandhi, this is nothing but a design to defeat the rights and interest of the opponent No.4 herein. According to him, when the instrument of power of attorney was executed, it was coupled with interest and, therefore, the same is irrevocable. Not only further rights have been created by the opponent No.4 in favour of the third parties, but the petitioners also have pocketed huge amount of money ratifying the Page 9 of 37 C/CA/11732/2013 CAV JUDGMENT action of power of attorney and, therefore, to say at this stage by taking the vault face that such power of attorney is revocable and, therefore, the action of the applicants deserves no endorsement of this Court.
5. Before adverting to the facts, the law on the subject requires consideration.
5.1 The Madras High Court in case of Mutharasu Thevar v. Mayandi Thevar & Ors., reported in AIR 1968 Madras 333 was considering a case where power of attorney was revocable for the principals as they allegedly lost confidence in the agency. The question which was debated before the Madras High Court was whether the principal had a right to invoke the powers given to the agent by way of a document, which is irrevocable in nature. It chose to refer to Bowstead Book on Agency, 12th Edition, which has stated the formula, as under :
"Where the authority of an agent is given by deed or for valuable consideration for the Page 10 of 37 C/CA/11732/2013 CAV JUDGMENT purpose of effectuating any security or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security of interest. But it is irrevocable merely because he has an interest in the exercise of it or has a special property in or lieu for advances upon, the subjectmatter thereof."
5.2 The Madras High Court on having considered the recital of the document held that such document did not create an irrevocable agency in the agent entitling him to object to the relief asked for by the principals on the ground that there was no security was in existence upon the execution of the instrument. Hence, no interest is coupled with the agency.
5.3 The Apex Court in Suraj Lamp & Industries Private Limited v. State of Haryana, reported in 2009 (7) SCC 363 was considering the ill effects of transaction of immovable properties by way of Sale Agreement/General Power of Attorney/Will transfer. While examining in Page 11 of 37 C/CA/11732/2013 CAV JUDGMENT detail the effect of transfer by way of each of such document, it also examined the power of attorney as an instrument of transfer and concluded that the transfer of immovable property by way of sale can only be made by a deed of conveyance and in absence of deed of conveyance, duly stamped and registered as required by the law, no right, title or interest in any immovable property can be transferred. In respect of transfer by a power of attorney is concerned, the Court held thus :
"13. 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 agency whereby the grantor authorizes 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 1A 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 attroney does not have the effect of transferring title to the trantee.Page 12 of 37 C/CA/11732/2013 CAV JUDGMENT
In State of Rajasthan v/.s Basant Nehata, 2005 (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 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 principla 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 hereinabove, 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 donor subject of course to the powers granted to him by Page 13 of 37 C/CA/11732/2013 CAV JUDGMENT 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." 5.4 This Court in case of Manubhai Prabhudas Patel & Ors. v. Jayantilal Vadilal Shah & Ors., reported in 2012 (1) GLH 565 had an occasion to consider disputes in relation to the irrevocable power of attorney. The learned Single Judge examined at length as to under what circumstances the power of attorney can be revoked. The Court held that a mere use of the word 'irrevocable' in the power of attorney document 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 the agent. It held that the power of attorney executed in favour of an agent, recording or Page 14 of 37 C/CA/11732/2013 CAV JUDGMENT 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. Some the relevant observations made in the said decision are profitably reproduced hereunder, at this stage:
"13.I am of the view that while construing a document, it is necessary to determine the real intention of the parties. The mere form in which document is couched is immaterial. The intention of the parties has to be gathered from the terms of the documents themselves and from such of the surrounding circumstances, as later required to show in what manner the language of the document is related to the existing fact. It is very difficult task to know the intention of the parties on the basis of the recital of the document. But, the Court can rely safely on the language of the document, the language, which has been used by the parties to manifest the intention of the parties. If the Court goes on extraneous evidence, that may lead to more difficulty and confusion.Page 15 of 37 C/CA/11732/2013 CAV JUDGMENT
But, there are certain principles to be borne in mind. The first principle is, the mere saying that the power of attorney is an irrevocable power of attorney coupled with interest is not the end of the matter. The Court, can clearly say that the document, though, is styled as an irrevocable power of attorney is not in substance a power coupled with interest so as to make 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 exfacie 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 Page 16 of 37 C/CA/11732/2013 CAV JUDGMENT 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. Where an act purporting to be done under the power of attorney is challenged as being in excess of the power, it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four corners of the instrument either by express terms or by necessary implication. Some of the principles governing the construction of a power of attorney are:(1) the operative part of the deed is controlled by the recitals, (2) where an authority is given to do particular acts, followed by general words, the general words are restricted to what is necessary for the performance of the particular acts, (3) the general words do not confer general powers but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for that purpose; (4) a power of attorney is construed so as to include all medium powers necessary for its effective Page 17 of 37 C/CA/11732/2013 CAV JUDGMENT execution. Bearing these general principles in mind the question for consideration is whether the power of attorney in this case authorised the first defendant to enter into an agreement to sell or authorised him to execute a sale deed."
"The Apex Court in Syed Abdul Khader Vs. Rami Reddy, reported in 1979(2) SCC 601 :
(AIR 1979 SC 553), held that what the power of attorney authorizes depends on its terms and the purpose for which it is executed."
"In Timblo Irmaos Ltd., Margo Vs. Jorge Anibal Matos Sequeira, reported in 1977(3) SCC 474 : (AIR 1977 SC 734), the Apex Court laid down that the most important factor in interpreting the power of attorney is the purpose for which it is executed. The Apex Court also held that the power of attorney had to be read as a whole in the light of the purpose for which it was meant. In the said pronouncement the Supreme Court laid down the settled rules of interpretation applicable to interpretation of power and held thus:"(i) The word used in a document has to be interpreted or in the context as a whole:Page 18 of 37 C/CA/11732/2013 CAV JUDGMENT
(ii) The purpose of the powers conferred by the power of attorney has been ascertained having regard to the need which gave rise to the execution of the document, the particulars of the parties and the manner in which the parties themselves understood the purpose of the document; and lastly (iii) Powers which are absolutely necessary and incidental to the ascertained object to the general 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."
Page 19 of 37 C/CA/11732/2013 CAV JUDGMENT
18.Thus mere use of the 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 the Agent. For example, a power of Attorney simplicitor, which merely authorizes an Agent, to do certain acts, in the name of or on behalf of the excutant can be revoked or cancelled by the excutant at any time, in spite of the instrument stating that the Power of Attorney is irrevocable. 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 (Section 202 of the Contract, 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 (Para20) Page 20 of 37 C/CA/11732/2013 CAV JUDGMENT "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 primafacie 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"
5.5 It would be also interesting to refer to Halsbury's Laws of England, Fourth Edition Volume I (2) where it has defined, "Irrevocable Authority" coupled with interest as under : Page 21 of 37 C/CA/11732/2013 CAV JUDGMENT "183. Authority coupled with interest - Where the agency is created by deed, or for valuable consideration, and the authority is given to effectuate a security or to secure the interest of the agent, the authority cannot be revoked. Thus, if an agreement is entered into on a sufficient consideration whereby an authority is given for the purpose of securing some benefit to the donee of the authority, the authority is irrevocable on the ground that it is coupled with an interest. So an authority to sell in consideration of forbearance to sue for previous advances, an authority to apply for shares to be alloted on an underwriting agreement, a commission being paid for the underwriting and an authority to receive rents, until the principal and interest of a loan have been paid off or to receive money from a third party in payment of a debt, have been held to be irrevocable. On the other hand, an authority is not irrevocable merely because the agent has a special property in or a lien upon goods to which the authority relates, the authority not being given for the purpose of securing the claim of the agent."
6. In light of the judicial pronouncements discussed hereinabove, the facts of the case needs Page 22 of 37 C/CA/11732/2013 CAV JUDGMENT recapitulation. The applicants herein have insisted that the cancellation of power of attorney would not entitle the opponent No.4 to continue any action by virtue of such document and, therefore, the request is made to delete their names from the causetitle of the petition preferred by the opponent No.4 in his capacity of a power of attorney holder of the present applicants. It is an undisputed fact that till the opponent No.4 approached the Collector, Ahmedabad and thereafter, the revisional authority against the order of the Collector, Ahmedabad, he acted by virtue of powers granted by the instrument of power of attorney and no dispute existed between the parties. The power of attorney executed in favour of the opponent No.4 on June 29, 2006 came to be revoked on March 04, 2011 by way of a public notice given in a daily newspaper "Divya Bhaskar"
on March 04, 2011. This public notice states that the present applicants are the agriculturists and the owners of the said land. They have at no Page 23 of 37 C/CA/11732/2013 CAV JUDGMENT point of time given any power of attorney in favour of opponent No.4. However, by a purported document of power of attorney, he is found to be attempting to transfer the land owned by the applicants and, therefore, such a power of attorney if at all exists, the same is revoked by way of such a notice and the people at large are also made aware of such declaration.
7. It is necessary to make a mention of agreement for sale made in favour of Narsinhbhai Becharbhai, Keshabhai Bechabhai, Bahucharbhai Gandabhai and Jayantibhai Nathabhai Patel by the opponent No.4 as power of attorney holder of the applicants on February 23, 2010. There are two agreements for sale coupled with the power of attorney which have all been registered as single document bearing registration number as under:
AHD5NRL 1861 122 2010
8. All the aforesaid documents have been registered vide registration No.1861 on February 23, 2010. Page 24 of 37 C/CA/11732/2013 CAV JUDGMENT The picture that emerges is that on a non judicial stamp paper of Rs.100/ bearing No.31946 dated February 12, 2010, the opponent No.4 being the power of attorney holder has executed the agreement for sale in favour of the above mentioned four persons. Further, on a non judicial stamp paper of Rs.50/ bearing No.30520 dated March 20, 2006, the agreement for sale has been executed by the applicants herein in favour of the above mentioned purchasers. Along with these two documents, a general power of attorney on a nonjudicial stamp paper of Rs.50/ (number and date illegible) executed on June 29, 2006 in favour of the opponent No.4 has been registered as a single document bearing Registration No.1861. Moreover, the possession agreement in favour of the purchasers has also been executed on a nonjudicial stamp paper of Rs.100/ dated June 27, 2006 bearing No.9641. The same has been executed by the applicants herein in favour of purchasers for consideration of Rs.31,73,843/, out of which a sum of Rs.28,49,999/ in cash has been paid intermittently and the remaining amount Page 25 of 37 C/CA/11732/2013 CAV JUDGMENT has been paid by way of cheques of different dates drawn in favour of the applicants. The vacant and peaceful possession as per the said possession agreement has been handed over to the purchasers. Therefore, the scenario that emerges is as under :
8.1 The applicants herein executed an agreement to sell in the year 2006 in favour of four purchasers, two of whom happened to be the father and paternal uncle of opponent No.4 and two others. The said document had been notarised on March 20, 2006. This also has a description of the said land and reference to the consideration of Rs.2 lakh per vigha. Three months thereafter the general power of attorney has been created in favour of the opponent No.4, as also in favour of one Narmadaben Jayantilal Patel, who is the wife of purchaser Jayantilal Nathalal Patel. Therefore, two purchasers Narsinh and Kesha Patel, who are respectively father and paternal uncle of the opponent No.4 and Narmadabenwife of purchaser Page 26 of 37 C/CA/11732/2013 CAV JUDGMENT Jayantibhai, are given power of attorney pursuant to such agreement to sell by the applicants. This came to be notarised as well on June 29, 2006 and along with the same, the possession agreement was executed, where consideration of Rs.31.73 lakh (rounded off) as mentioned hereinabove gets reflected with the total amount having been paid in cash as well as by way of different cheques.
9. In light of these factual matrix, the terms of general power of attorney shall have to be read carefully.
10. All the applicants granted powers to both i.e. opponent No.4 and/or Narmadaben Jayantibhai Patel. Various rights have been created in favour of opponent No.4 in respect of the said land. All the powers that can be exercised by the applicants have been given to the opponent No.4.
He also has been empowered to execute the registered sale deed, affidavits, indemnity bond, etc. before the office of the subregistrar, for Page 27 of 37 C/CA/11732/2013 CAV JUDGMENT executing the registered sale deed under the Indian Registration Act and even for the purpose of supplementary documents, necessary for completing the task of registration, so also for handing over possession of the land. He is further empowered to assign the notice under section 135(D) of the Bombay Land Revenue Code. Clause 14 shall be important to notice, which says that the said power of attorney shall not be cancelled without permission in writing given by the holder of the power himself and the power is irrevocable and the power of attorney is also entitled to grant such powers and rights to others. It is reiteratively mentioned that the said irrevocable general power of attorney shall not be cancelled without the written permission of the power of attorney himself.
11. The central question, therefore, before this Court is whether the general power of attorney termed as irrevocable power of attorney executed by the applicants in favour of opponent No.4 is, in fact, irrevocable or not. Applying the test Page 28 of 37 C/CA/11732/2013 CAV JUDGMENT that has emerged from the judicial pronouncements on the subject, the principle of section 202 would apply only to cases where the authority is given for the purpose of being a security or a part of security and not to the cases where the interest of the donee arises afterwards and incidentally. For an agent to have an interest in the subject matter of agency, the agency cannot in absence of express contract be terminated.
12. In other words, if the power or authority is given by way of a security or a part of the security, such power is irrevocable, however, if the interest of the donee arises either afterwards or incidentally, there would be no authority coupled with interest but an independent authority where the interest arises subsequently.
13. For applying such test, certain facts need recapitulation.
14. The power of attorney holder filed an additional affidavit on April 25, 2014, inter Page 29 of 37 C/CA/11732/2013 CAV JUDGMENT alia stating that he with Narsinhbhai Becharbhai Patel and Jayantibhai filed a suit for specific performance being Special Civil Suit No.249 of 2011, where his capacity is that of power of attorney holder. The power of attorney which was originally executed, was notarised initially and thereafter, together with the agreement to sell was placed before the Registrar of Documents and both, the agreement to sell and power of attorney came to be registered. However, the possession was already handed over on June 29, 2006 by the applicants in favour of the proposed purchasers namely Narsinhbhai, Keshabhai, Bachubhai and Jayantibhai of the said property, who are parties to the agreement to sell. One of the purchasers Keshabhai Becharbhai passed away and his heirs have foregone the rights in favour of Jayantibhai and Narsinhbhai. During the course of proceedings, Narsinhbhai Patel, who was plaintiff No.1 in the said suit, died on July 07, 2012 and the suit qua him has abated for want of any application on the part of the heirs. An application is also moved to set Page 30 of 37 C/CA/11732/2013 CAV JUDGMENT aside such abatement. It is further averred that the agreement to sell was executed in favour of four persons out of which two transferred their rights in favour of the father of respondent No.4 and one Jayantibhai. Since the father of respondent No.4 has expired, the rights have been vested in favour of respondent No.4. It is also stated that there is nothing to indicate that the power of attorney holder has acted against the interest of the executants of the power of attorney. In their public advertisement also, no such allegation has been levelled. This being a power of attorney, according to opponent No.4, with interest in the immovable property, withdrawal of such power of attorney is out of question. It is also the say of the opponent No.4 that on the basis of the documents executed by the applicants in favour of original four allottees, the opponent No.4 had undertaken the responsibility of removing the entry of 'new tenure' in the revenue record since the land was originally of an old tenure. Against the order of the Collector, according to opponent No.4, the Page 31 of 37 C/CA/11732/2013 CAV JUDGMENT Principal Secretary (Appeals), Revenue Department, was approached by way of Revision and thereafter, the present application has been preferred which is at the fag end of hearing of the main Special Civil Application. Such application has been moved which is nothing but a mala fide intent. Therefore, a request is made to let the main petition be heard without adjudicating the present application.
15. An affidavitinrejoinder came to be filed by the applicant stating that after completion of hearing, such affidavitinreply came to be filed. It is further contended that Civil Suit No.249 of 2011 is pending, which has no relevance as far as adjudication of the present application is concerned. It is further urged that the opponent No.4 is misusing the power of attorney executed and other registered documents of February 23, 2010 in favour of third party in respect of the land belonging to the applicants and, therefore, the advertisement for cancelling such power of attorney is given.
Page 32 of 37 C/CA/11732/2013 CAV JUDGMENT
16. In the present case, the power of attorney or authority is given by way of security as is apparent. As noted hereinabove, first of all the agreement to sell came to be executed in the year 2006 in favour of four purchasers, two of whom are close relatives of the opponent No.4, the power of attorney, by the executant of such power of attorney. The document was also registered on March 20, 2006. Three months later to such agreement to sell, the power of attorney has been executed which was notarised on June 29, 2006. It is also needed to be noted that the possession agreement was given in favour of the purchasers dated June 27, 2006, in lieu of consideration paid to the owner, who are executors of the power of attorney. Therefore, creation of the power is by way of security or part of the security. It is not the case that the interest of the donee had arisen afterwards or incidentally. It appears to be an assignment of interest in subject matter to agent simultaneously with creation of power. As held by Page 33 of 37 C/CA/11732/2013 CAV JUDGMENT this Court in the case of Manubhai Prabhudas Patel (supra), the real intention of the parties needs to be gathered from the totality of the recital of the document and not from the stray sentences here and there. As held by the Apex Court in the case of Syed Abdul Khadar v. Rami Reddy, reported in (1979)2 SCC 601, the most important factor in interpreting the power of attorney is the purpose for which it is executed i.e. from the terms of the power of attorney itself. This Court in the case of Manubhai Patel (supra) held thus :
"13. .. .. 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 Page 34 of 37 C/CA/11732/2013 CAV JUDGMENT 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."
17. Considering the ratio laid down in the aforementioned authority, so also in all those judicial pronouncements discussed hereinabove, it can be said that the power of attorney in the present case is an irrevocable power of attorney coupled with interest created in favour of the opponent No.4 and his family members. It becomes very obvious from the chronology of events that after having executed the agreement to sell in favour of close relatives of opponent No.4 and two other persons, who eventually have given their rights to the family members of the opponent No.4 and one Shri Jayantibhai Nathabhai Patel, for the purpose of transfer of the land such power of attorney has been created. The land indisputably was of the nature of old tenure. However, thereafter the same has been entered as Page 35 of 37 C/CA/11732/2013 CAV JUDGMENT new tenure land in the revenue records. Therefore, the transfer of such land would not be permissible without following due procedure of law. Litigation is pending pursued by the opponent No.4 before the Collector and Appellate Authority to change the entry from new tenure to old tenure. As he failed to succeed, Special Civil Application No.12988 of 2009 is preferred and the same is pending before this Court. Such litigation continued over the period of time of which the executants of the power of attorney are also aware. The possibility cannot be ruled out that with the denial of such request by two authorities consecutively and during the pendency of such orders before this Court, the land prices have escalated in the State of Gujarat and that possibly is the reason that after having enjoyed the consideration approximately to the tune of Rs.32 lakh, such challenge is made for revoking the power of attorney. As the suit between the parties is pending before the concerned Court, wherein the plaintiffs in whose favour the agreement to sell has been executed, have made a Page 36 of 37 C/CA/11732/2013 CAV JUDGMENT request to get the registered sale deed to be executed in their favour on the strength of the registered agreement to sell, where the parties need to prove their independent rights so as not to affect the rights of either side, this Court restrains itself from dilating and discussing the entire dispute further. Suffice it to note that the power of attorney executed in favour of the opponent No.4 requires to be considered as irrevocable power of attorney and, therefore, present application deserves to be rejected.
18. For the foregoing reasons, the present application fails and is, accordingly, rejected. Rule is discharged. There shall be, however, no order as to costs.
(MS SONIA GOKANI, J.) Aakar Page 37 of 37