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Under Section 79(2)(g) of the Companies Act "a proxy must be a member of the company", and Article 44 (65?) in Table A provides "No person shall be appointed a proxy who is not a shareholder" and these provisions are applicable to the present case there being nothing in the articles of the company inconsistent therewith. Therefore, there is no doubt that a proxy can validly be given only to a member.

But the respondents argue that Article 38 clearly recognises that a member can be present in person or by proxy or by attorney and that, therefore, the attorneys form a class distinct from proxies and to them there is no limitation that they should be members, Mr. K. Rajah Ayyar contends on behalf of the appellants that in law the status of a proxy is only that of an agent, that no distinction can be made between a proxy and an attorney and that they are synonymous words. He refers to item 48 in Schedule I to the Stamp Act which deals with the powers of attorney not being a proxy & item no. 52 which deals with proxy and argues that this is a recognition that proxies are only a form of power of attorney. He also relies on the observations of Lindley, J. in -- 'English Scottish & Austraian Chartered Bank In re', (1893) 3 Ch 385 (Q) that a "proxy there means some agent properly appointed" and the decision of Satyanarayana Rao and Chandra Reddi, JJ. in -- 'Narayanan Chettiar v. Kaleswara Mills', (R) where it was held that the relationship between a share-holder and a proxy is that of a principal and an agent. That undoubtedly is so but the question is what do the words "By proxy or by attorney" in Article 38 mean? Clearly they cannot be held to be synonymous because the words actually used are "By proxy or fay attorney", and not "by proxy or attorney". The argument of the appellants involves the rejection of the words "by attorney" as meaningless surplusage. But it is unnecessary to pursue this matter further because there is a clear ground on which this contention of the appellants must fail. It appears from the voting list appended to the Commissioner's report that even excluding the votes cast by the. two non-members Narayanaswami & Ramchandran the defendants get 10120, votes as against 4078 obtained by the plaintiffs' group. The result of the election has not been affected by this irregularity and therefore, it cannot be set aside.