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IN THE HIGH COURT OF ORISSA
Misra, J.
SRIMATI SNEHALATA DAS AND ANOTHER - APPELLANT
Versus
PRAFULLA KUMAR PATNAIK - RESPONDENT
Second Appeal No. 411 of 1963
Decided On : 04-09-1965
POWER OF ATTORNEY - CONSTRUCTION - GIFT - AUTHORITY - A power of attorney must be construed strictly. General words used in subsequent clauses must be read with special powers given in earlier clauses and cannot be construed to enlarge restricted powers.
Fact of the Case:
Plaintiff filed a suit for declaration of title and recovery of possession of a disputed land, claiming that the defendants encroached upon it while constructing their house. The defendants claimed that the disputed land was part of their purchased land and that the plaintiff acquired no valid title under a gift deed as the gift was not authorized by the power of attorney.
Finding of the Court:
The court found that the disputed land was part of the land gifted to the plaintiff under the gift deed and not part of the land purchased by the defendants. The court also found that the plaintiff acquired a valid title to one-fifth share of the disputed properties as the gift was valid in respect of the donor's own share.
Issues: 1. Whether the power of attorney authorized the making of a gift of the land. 2. Whether the plaintiff acquired a valid title under the gift deed.
Ratio Decidendi: 1. A power of attorney must be construed strictly, and general words used in subsequent clauses must be read with special powers given in earlier clauses and cannot be construed to enlarge restricted powers. 2. The power of attorney in this case did not authorize the making of a gift, as it specifically mandated that the transfer must be for consideration.
Final Decision: The court set aside the decrees of the lower courts and granted the plaintiff a decree for declaration of title and joint possession of one-fifth share of the disputed properties.
JUDGMENT :
Misra, J. - The disputed land is 1 gunth, 1 biswa and 8 gandas in area. It is a portion of plot 505 measuring 1 man and odd which belonged to one Jatindra Mohan Dhar who died in 1952 leaving behind five Bons, Niroj, Jnanoj, Pankoj, Saroj and Manoj. Manoj died leaving behind his widow Jayanti and three senior sons. By various sale deeds the heirs of Jatindra transferred all the lands in plot 505 excepting 15 gunths, 15 biswas and 4 gandas which was in their possession. On 16.3.1954 Niroj, Jnanoj, Pankoj and Jayanti on behalf of herself and her minor sons executed a registered power of attorney (ext. 3) in favour of Saroj for disposal of the lands inherited by them. On the basis of this authority, Saroj executed a registered sale-deed (ext. C) on 18-10-1955 in favour of Defendant No. 1 in respect of 3 gunths, 15 biswas and 16 gandas out of plot 505. On 28-3-1960 Saroj executed a registered deed of gift (ext. 4) on behalf of himself and the other heirs in favour of the Plaintiff in respect of 11 gunths, 15 biswas and 8 gandas out of plot 505. Defendant No. 1 is the wife of Defendant No. 2.
Plaintiff?s case is that the Defendants while constructing their house encroached upon the disputed land which is a part of the Plaintiff?s land obtained under Ext. 4. The suit is for declaration of title and recovery of possession.
The defence case is that the south-eastern portion of plot 505 measuring 1 gunth and odd lying adjacent to the west of the municipal road was completely covered by a ditch of about 10 feet depth. Defendant No. 1 purchased under Ext. C 3 gunths, 15 biswas and 16 gandas to the west of the ditch portion and platform the margin of the municipal road. The ditch portion was set apart for a Rasta. Defendants accordingly claimed that the suit land is a part of their purchased land. A further defence was taken that the Plaintiff acquired no valid title under Ext. 4 as the gift was not authorised by the power of attorney (ext. 3). Defendants started construction in 1956. As the Plaintiff?s predecessors-in-interest did not raise any objection at the time of construction, Plaintiff?s suit is barred by estoppel and waiver.
2. Both the courts below concurrently recorded the following findings:
(i) The disputed land constitutes a part of the land gifted to the Plaintiff? under Ext. 4 and it does not constitute part of the land purchased by Defendant No. 1 under Ext. C.
(ii) Though the Defendants started construction of their house before 1958, the Suit is not barred by estoppel or waiver.
(iii) Plaintiff acquired a valid title under Ext. 4. Mr. Sinha does not challenge the first two findings.
3. The only contention advanced by Mr. Sinha is that Saroj had no authority to make a gift of the lands under Ext. 4 and that the Plaintiff acquired no title. To appreciate this contention, it is necessary to extract the material terms of the power of attorney (ext. 3):
Whereas we have our properties situated in different places in India and whereas we have to execute petitions, applications, and also to manage, supervise and if necessary to dispose of or lease out our properties inter-alia our landed property at Baripada...we all do individually and collectively nominate, appoint and authorise our brother, (brother-in -law) and co-sharer Sri Saroj Mohan Dhar, as our general, legal and lawful attorney to do the following acts and deeds on our behalf and as our agent.
(1) To negotiate, invite offers and accept the same in respect of our aforesaid property at Baripada and to enter into a contract for sale with any purchaser for any reasonable price and to receive, accept and obtain any money in consideration of the sale thereof by advance or otherwise and in full and to grant, discharge or issue receipts for the same.
(2) To sell, transfer, lease out, or deal or dispose of the said property on our behalf and on signing our names in the deeds or convents for the purpose thereof
(3) To appear before any Registrar of Assurance anywhere in the union
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