Fernando V. Themis Appuhamy

1940     Present: Howard C.J. and Keuneman J. 

FERNANDO v. THEMIS APPUHAMY.  

55-6-D. C. Colombo, 876. 

Power of attorney-Power to manage and transact business-Termination of business-Cancellation of power-Recitals control the operative part. 

Where a power of attorney contained the following recitals: - " Whereas I am carrying on business as a timber merchant; and whereas I am unable to carry4 on the said business personally; and whereas I am desirous of appointing some fit and proper person as my attorney to manage and transact all my business and affairs in respect of the said business ",- 

And where the operative part of the power nominated a person his "true attorney to act for him and on his behalf and in his name or otherwise in respect of my said business ",- 

Held, that the purpose for which the power was given was the manage­ment of the business as a timber merchant and that with the cessation of the business the power of attorney was automatically cancelled. 

APPEAL from a judgment of the District Judge of Colombo. 

N. E. Weerasooria, K.C. (with him E. B. Wikremanayake and H. A. Koattegoda), for the first defendant, appellant. 

C. V. Ranawake, for the second defendant, appellant. 

H. V. Perera, K.C. (with him Dodwell Gunawardena), for the plaintiff, respondent. 

Cur. adv. vult. 

March 13, 1940. HOWARD C.J.- 

This is an appeal by the defendants from a judgment of the Additional District Judge of Colombo dated December 9, 1938, who held that certain deeds of transfer numbered respectively 129 and 130 and dated December 1, 1936, were executed without any authority. The second defendant purported to execute the deeds transferring certain properties to the first

 defendant by virtue of a registered power of attorney No. 1000, exhibit P 3 dated May 6, 1933, and executed by the plaintiff in favour of the second defendant. By P 3 the second defendant was appointed by the plaintiff to act for him and on his behalf and in his name or otherwise in respect of his business as a timber merchant. In paragraph 6 of his plaint the plaintiff pleaded that he ceased to carry out his said business in or about February, 1935. In paragraph 1 of his answer the first defendant admitted the averments contained in paragraphs 1 to 7 of the plaint. The second defendant who was added as a party on the application of the first defendant did not in his answer deny the averment contained in paragraph 6 of the plaint. The only question, therefore, for decision by the District Judge was whether, having regard to the fact that the business of the plaintiff had come to an end, the second defendant had authority to execute the two deeds in favour of the first defendant. It was argued by Counsel for the defendant

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