The validity of the cancellation of a power of attorney and the authority of a sale deed in property disputes.

JUDGMENT :

1. This appeal has been directed against a judgment and order dated 26, 2018, passed by the learned Civil Judge (Senior Division), Kandi, Murshidabad in Title Appeal no. 72 of 2011 affirming the judgment and decree dated May 31, 2011 passed by the learned Civil Judge (Junior Division), 1st Court, Kandi, Murshidabad in Title Suit no. 174 of 1995.

2 One Haripada Mondal, since deceased, as plaintiff filed a suit against his elder son, his daughterin- law, and his grandson impleading them as defendant nos. 1, 2 and 3 respectively.

3. Haripada made out a case in the plaint that he became the owner of the suit property by way of inheritance and purchase. He and his elder daughterin- law executed a registered general power of attorney in favour of his elder son, defendant no. 1, on February 21, 1983, for administering the suit properties. Since the defendant no. 1 was misappropriating the property in respect of which the power of attorney was executed, Haripada cancelled the said power of attorney by executing the deed of cancellation dated August 21, 1995. Haripada pleaded that he had informed as to the cancellation of the said power of attorney to the defendant no. 1 orally and also by a lawyer’s letter dated August 21, 1995. The fact of the cancellation of the general power of attorney was also published in a local newspaper on August 23, 1995.

4. The defendant no. 1, in spite of having full knowledge as to the cancellation of the power of attorney, executed a sale deed in favour of his wife and sons i.e. defendant nos. 2 and 3 on August 25, 1995. Haripada, therefore, filed the suit for a declaration of his title over the suit property and also for a declaration that the sale deed executed on August 25, 1995 by the defendant was void and inoperative.

5. The suit was contested by the defendant nos.1, 2, and 3 asserting as to the genuineness of the sale deed dated August 25, 1995. The defendants contended that as sum of Rs.20000/-was paid to the plaintiff as a consideration money for the sale. It was the case of the defendants that the defendant no. 1 received the lawyer’s notice as to the cancellation of the deed on August 26, 1995 and as such, he had no knowledge about the cancellation of the power of attorney on the date when he executed the sale deed in favour of his wife and sons on August 25, 1995.

6. During pendency of the suit Haripada died and one of the sons of Haripada carried the suit as plaintiff while other sons and daughters of Haripada were impleaded as defendants in the suit.

7. Law relating to cancellation of a power of attorney has been considered by this bench in a judgment passed in FMAT 455 of 2019 (Sharad Singhi Vs. Sheojee Tiwari & Ors.). It was held that :

“The status of the constituted attorney is akin to an agent terminable at any point by the principal except the agent before such time exercised his authority given under the aforesaid instrument to bind the principal. More so, when a power to do specified act is given to the agent the power of attorney is required to be construed strictly as the act of the agent in excess of the authority shall not bind the principal. The exception can be seen in Section 202 of the Contract Act, 1872 protecting the interest of an agent against termination of the agency if he has an interest in the property constituting the subject-matter of the agency. Illustration (a) appended to Section 202 of the Act makes the position more clear when an authority to sell the property of the principal was given to the agent who out of the sale proceeds pays himself to the debts due to him from the principal. The authority cannot be said to be a bare agency but coupled with the grant and may be deemed to be irrevocable as the purpose underlining such authority is to secure some benefit.

The contention of the plaintiff that the aforesaid power of attorney are irrevocable has to be understood in the perspective of the intention gathered from the power of attorney. Mere use of the word “