Bastiam Pillai V. Anna Fernando

1952 Present : Nagalingam S.P.J. and Pulle J.

BASTIAM PILLAI, Appellant, and ANNA FERNANDO, Respondent

S. C. 39-D. C. Negombo (Inty.) 15,480

Power of attorney-Must be construed strictly-Construction of general words therein- Recitals control operative part-Civil Procedure Code, s. 25 (b).

The recitals in a power of attorney stated that as the principal could not look after the landed properties or manage or collect their income ah© was desirous of conferring that power on the attorney. The operative part, however, contained general words which purported to confer unrestricted powers. In an action instituted by the agent in the principal's name to vindicate ownership against a trespasser and to recover damages from him for alleged encroachment on certain premises belonging to the principal-

Held, that a power of attorney must be construed strictly and that the special terms in the recitals controlled the general words in the operative part. The agent, therefore, had gone beyond her authority in instituting the action when, in fact, her power was limited only to the management of the properties of the principal.

APPEAL from an order of the District Court, Negombo.

S. J. V. Chelvanayakam, Q.C., with C. Chellappah, for the defendant appellant.-The question is whether the power of attorney given by plaintiff to her attorney is sufficient to maintain this action. Where an act purporting to be done under a power of attorney is challenged as being in excess of the authority conferred by 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 instruments, either in express terms or by necessary implication-Bryant, Powis and Bryant, Ltd. v. La Banque Du Peuple 1[(1893) A. C. 170.]. A power of attorney is construed strictly. The recitals govern the whole purpose of the power-Danby v. Coutts 2[(1885) 29 Ch. D. 500.]. The special terms of a power of attorney prevent general words from having an unrestricted general effect-Harper v. Godsell 3[(1870) L. R. 5 Q. B. 422.]. In the present case the attorney was given specific powers, namely, to manage and collect the income of plaintiff's property in the Negombo District. The power to sue was given only in respect of the matters specifically authorised. o It did not extend to include the institution of an action to vindicate ownership against a trespasser.

E. B. Wikramanayake, Q.C., with M. I. M. Haniffa and M. Markhani, for the plaintiff respondent.-Sections 24 and 25 of the Civil Procedure Code are applicable to the present case. The only question is whether the power of attorney is a " general power " within the meaning of section 25 (6). The cases cited for appellant apply to special powers of attorney. All that section 25 (b) requires is a general power of attorney to appear in Court. See Lanka Estates Agency, Ltd. v. W. M. P. Corea. 4[(1951) 52 N. L. R. 477 ; 45 C. L. W. 33.]

S. J. V. Chelvanayakam, Q.C., replied.

Cur. adv. vult.

June 27, 1952. PULLE J.-

This action instituted on the 17th October, 1949, comes up in appeal on a preliminary point raised by the defendant that the action is not properly constituted. The allegation against the defendant, who is the appellant, is that he encroached on premises No. 89, Main Street, Negombo, belonging to one Anna Pearl Fernando and caused damage. One of the defences raised was that the attorney of Anna Pearl Fernando, one G. Alice Fernando, who purported to file the action in the name of her principal had no authority to do so.

Defendant's counsel conceded before the trial Judge that the terms of the power of attorney in favour of G. Alice Fernando were wide enough to enable her to institute the action, but submitted that, as Anna Pearl

Fernando was in Ceylon, the attorney could not act under that power The submission was rejected and the preliminary

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