# SYED ABDUL KHADER v. RAMI REDDY & ORS

- **Citation:** [1979] 2 S.C.R. 424
- **Court:** Supreme Court of India
- **Decided:** 1978-11-29
- **Case number:** Civil Appeal No. 1271 of 1969
- **Bench:** P. N. Shjnghal, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/syed-abdul-khader-v-rami-reddy-ors-7609
- **Pages:** 18

## Headnote

Poivers of Attorney Act, 1882 (7 of 1882), s. 2-Three principals if could
jointly constitute an agent by a 'power of artorney'-Construction-Surroundinq
circ111nsta11ccs if could be taken for ascertaining the intention of the parties.
Code of Cit·il Procedure 1908 (Act 5 of 1908) Or. 41 r. 27-IVo right con-
/erred on a party to produce ndditional eridt'nce-Only court hearinR action has
jurisdiction to pennit.
Tran<fer of Property A ct 1882 ( 4 of 1882) s. 41 & Tmsts A ct 1882 (2 of
1882)-s. 82-Bennrni Transaction-Ingredients of.
The plaintiff (appellant), his father and step brother were owners of lands
1n a village irr the former State of Hyderabad.
Coming to know that the two
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brothers and father were contemplating to migrate to Pakistan, defendant No. i
suggested to the plaintiff that he would manage their properties but that since
he \Vas Oot in good health, a nominal power of attorney might be granted in
favour of defendant No. 34.
The po1,ver of attorney (Ext. Pl) was granted tc
defendant 34 by all of them. It \vas later supplemented by another dee<l (Ext.
P2).
The plaintiff alleged that sometime thereafter he realised that the two
defend<'lnL'> in collusion \VitR each other transferred his lands to c!hers for no
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c:onsidcratiop or inadequate consideration and that thereby a fraud v.·~.s perpetrated upon him by the defendanl<;.
Thereupon.
it was further alleged, the
plaintiff and his brother published in the ne\vspaper5 and the olT1cial gazette a
notice (.'ancelling the power of attorney granted to defendant No. 34.
The
plaintiff sued the defendants for recovery of possession of lands and certaiil
other te:ieihs.
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The defendants on the other hand claimed that the two docun1ents being
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valid, the plaintiff could not resile from them.
They also alleged that the plaintifT \Vas not the full and absolute O\vner of the lands but was a benarnidar.
The trial court dismissed the plainti!I"s suit holding that the documents were,
valid: The High Court upheld the trial court's order. It he,vever held that the
plaintiff \yas the absolute owner of the suit properties.
Dismissing the appeals,
HELD: l(a) There is no force in the contention that it is impern1issib~e for
three persons to jointly grant a power of attorney in favour of defendant no. 34.
Co~l'Jrincipals may jointly appoint an agent to act for them and in such a case
they become jointly liable to him and may jointly sue hinl.
f430C, F]
H
\ b) The relation of agency arises when one person, called the agent, has
authority to act on behalf of another called the principal and consents so to act.
The relationship has its genesis in con~ract. In order to show that it ic; impery
s. A. KHADER v. R. REDDY (Desai,!.)
425
missible for three principals to jointly constitute an agent by a common power
A
of attorney it should be shown that the provisions of Contract Act or the general
Jaw of contract have been violated by such a contract.
[430E]
In the instant case there is no such violation.
Halsbury's L'lws of England Vol. 1 4th Edn. para 726 referred to.
2. There is no force in the contention that since the two, documents confer a
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joint power of attorney in respect of propert:es of the three co-principals, the
agent could look after the joint properties of the donors alone and not their
individual affairs.
What a power of attorney authorises depends on its terms
and the purroses for which it was exe-cuted.
Where oomeone other than the
perso11 \Vho has the right to act in respect of certain things, has under a contract of agency, the right to act on behalf of the principal, the authority conferred by the written instrument has to be strictly construed.
Ordinarily the
power of attorney is construed strictly by courts. It is equally we11 established
that in considering a contract it is legitimate to take into account the surrounding
circumstances for ascertaining the intention of the· parties.
[430H, 431A, 431 H432A, Fl
Bryant, Powis and Bryant Ltd. v. La Banque du Peuple, 1893 A.C.

## Text

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424
SYED ABDUL KHADER
v.
RAMI REDDY & ORS.
November 29, 1978
[P. N. SHJNGHAL AND D. A. DESAI, JJ.]
Poivers of Attorney Act, 1882 (7 of 1882), s. 2-Three principals if could
jointly constitute an agent by a 'power of artorney'-Construction-Surroundinq
circ111nsta11ccs if could be taken for ascertaining the intention of the parties.
Code of Cit·il Procedure 1908 (Act 5 of 1908) Or. 41 r. 27-IVo right con-
/erred on a party to produce ndditional eridt'nce-Only court hearinR action has
jurisdiction to pennit.
Tran<fer of Property A ct 1882 ( 4 of 1882) s. 41 & Tmsts A ct 1882 (2 of
1882)-s. 82-Bennrni Transaction-Ingredients of.
The plaintiff (appellant), his father and step brother were owners of lands
1n a village irr the former State of Hyderabad.
Coming to know that the two
D
brothers and father were contemplating to migrate to Pakistan, defendant No. i
suggested to the plaintiff that he would manage their properties but that since
he \Vas Oot in good health, a nominal power of attorney might be granted in
favour of defendant No. 34.
The po1,ver of attorney (Ext. Pl) was granted tc
defendant 34 by all of them. It \vas later supplemented by another dee<l (Ext.
P2).
The plaintiff alleged that sometime thereafter he realised that the two
defend<'lnL'> in collusion \VitR each other transferred his lands to c!hers for no
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c:onsidcratiop or inadequate consideration and that thereby a fraud v.·~.s perpetrated upon him by the defendanl<;.
Thereupon.
it was further alleged, the
plaintiff and his brother published in the ne\vspaper5 and the olT1cial gazette a
notice (.'ancelling the power of attorney granted to defendant No. 34.
The
plaintiff sued the defendants for recovery of possession of lands and certaiil
other te:ieihs.
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The defendants on the other hand claimed that the two docun1ents being
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valid, the plaintiff could not resile from them.
They also alleged that the plaintifT \Vas not the full and absolute O\vner of the lands but was a benarnidar.
The trial court dismissed the plainti!I"s suit holding that the documents were,
valid: The High Court upheld the trial court's order. It he,vever held that the
plaintiff \yas the absolute owner of the suit properties.
Dismissing the appeals,
HELD: l(a) There is no force in the contention that it is impern1issib~e for
three persons to jointly grant a power of attorney in favour of defendant no. 34.
Co~l'Jrincipals may jointly appoint an agent to act for them and in such a case
they become jointly liable to him and may jointly sue hinl.
f430C, F]
H
\ b) The relation of agency arises when one person, called the agent, has
authority to act on behalf of another called the principal and consents so to act.
The relationship has its genesis in con~ract. In order to show that it ic; impery
s. A. KHADER v. R. REDDY (Desai,!.)
425
missible for three principals to jointly constitute an agent by a common power
A
of attorney it should be shown that the provisions of Contract Act or the general
Jaw of contract have been violated by such a contract.
[430E]
In the instant case there is no such violation.
Halsbury's L'lws of England Vol. 1 4th Edn. para 726 referred to.
2. There is no force in the contention that since the two, documents confer a
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joint power of attorney in respect of propert:es of the three co-principals, the
agent could look after the joint properties of the donors alone and not their
individual affairs.
What a power of attorney authorises depends on its terms
and the purroses for which it was exe-cuted.
Where oomeone other than the
perso11 \Vho has the right to act in respect of certain things, has under a contract of agency, the right to act on behalf of the principal, the authority conferred by the written instrument has to be strictly construed.
Ordinarily the
power of attorney is construed strictly by courts. It is equally we11 established
that in considering a contract it is legitimate to take into account the surrounding
circumstances for ascertaining the intention of the· parties.
[430H, 431A, 431 H432A, Fl
Bryant, Powis and Bryant Ltd. v. La Banque du Peuple, 1893 A.C. 170 rit 177,
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Modi & Co. v. Unlon of' India, [1963] 2 SCR 565; referred to.
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In the instant case in Ext. Pl at three places the expressions used ;ire "our
power of attorney to act on our behalf and we empower the said pers.on''. "on our
behalf in all departments'', and lastly, "acts done and effected by the ng('nt ~hall
be deemed to be acts done and effected by the principals." The power of <1ttorney having been granted by three co-principals in favour of one agent the expression "on our behalf" would hardly be decisive of the scope of authority
conferred by the deed.
The surrounding circumstances clearly established that
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each of the co-principals had his land, each of them could not have access to
thic; land and therefore could not manage them, and with a view to n1igrating
to Pakistan e(lch of them apparently wanted to dispose of his lands and collect
cash and therefore for this purpose each of them wanted to constitute defendant
no. 34 to be his agent in respect of his individual property.
[432C, G, 43~Fl
3. A general power of attorney is not a compulsorily registrable document.
\Vhen those \\1ho executed a deed admit having executed it, the fact that !he
Sub~Registrar failed to endorse that the executants were known to him 'vould
not render the deed invalid. Nor is there a legal obligation on the part of the
Sub-Registrar to make an endorsement that the persons executing a deed were
either personally known to him or were identified by someone kno\\'n to him.
[434C, BJ
4. There i~ no force in the submission that the authority given under Ex.Pl
\vas only to manage the property and not to sell it. F.xt. Pl dearly showc; that
apart from the power to manage the property a fnrther power to purchao;e and
setl lands wa~ conferred on the agent.
The general power o:t! attorney conferred
wide authority on defendant no. 34 to file suits, defend actions, engage Jav.ryer'i.
purchase and sell land and execute sale deeds and so on. f434D·E, 435A]
5. A document wilt be considered as a whole for interpretation of particuJ;ir
~'orcbl or directions~ An ordinary authority given in one part of the instrument
will not be cut down because there are ambiguous and uncertain expression,
-else,vhere.
A pon'er of wide nmplitude conferr!ng wide authority cannot by
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SUPREME COURT REPORTS
[1979] 2 s.c.R.
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construction be narrowed down to deny an authority which the donor expressly
wanted to confer. [436B]
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Halsbury's Laws of England 4th Edn. Vol. I para 733; referred to.
6. (a) By 11 catena of decisions of this Court it is well established that Order
41 Rule 27 C.P.C. does not confer a right on a party to produce additional
evidence before an appellate court. But if the court bearing the action requires.
any document to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be produced. If the High Court considered production of registered sale deeds essential to enable it to pronounce judgrnent, there
is no reason why this Court should interfere with the discretionary pcn.ver properly exercised by the High Court in the interest of justice.
[439E.-F]
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7. (a) The contention that defendant no. 34 \vho \vas the con~titutcd attomcy ....,
acted as a n1ere n1bber stamp in certain transactions has no force.
Section 41 ,
""'11111111111
of the Transfer of Property Act provides that where, with the consent, express
~
or implied of the person interested in immovable' property, a person is the osten-
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sible o\vner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor \Yas not authorised
to make it.
[436D, 437F]
(b) Even if the father of the plaintiff could be said to be the
ostensible
owner of the land and he purported to sell the land, the plaintiff had acquiesced
in the sale and accepted the consideration.
He would therefore be e5topped
from challenging the tile which \Vas transferred pursuant to the sale.
[437E]
Ran1coomar v. Macqueen, 1872 I.A. 11 Bengal LR 46; referred to.
8. (a) The contention that the plaintiff was a benamidar cannot be accepted.
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The genesis of the concept of benami is that consideration for a transfer n1ust
flow from one person and the transfer is taken in the name of the other pen•on
and the consideration so :flowing for the transfer was not intended to be a gift
in favour of the person in whose name the transfer is taken.
All these ingredients of benami are absent in the instant case.
[440H]
F
(b) Section 82 of the Indian Trusts, Act, 1882 provides that where property
is transferred to one person for a consideration paid or provided by another
person, and it appears that such person did not intend to pay or provide such
consider for the benefit of the transferee, the transferee must hold the property
for the benefit of the per~n paying or providing the consideration.
[440F]
( c) The plaintiff's father held a high office in the Nizam's Government. He
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might have influenced the Nizam to grant the land to his son. There is no C\'i·
dcnce to show that the patta was for consideration. EYen if the Nizam in appreciation of the service rendered by the plaintiff's father granted the land to the
plaintiff it could not be said that any consideration flowed from the father of
the plaintiff so as to make him a benamidar.
[440E. G]
H
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1271 of 1969.
Appeal from the Judgment and Order dated 17-8-1966 of the
Andhra Pradesh High Court in Appear Nos. 252 and 283 of, 1960.
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s. A. KHADER v. R. REDDY (Desai,!.)
V. Gopala Krishnaiah, A. K. Ganguli and D. P. Mukherjee for
the Appellant.
Upendraial Waray and A. Subba
Rao for the Respondent.
The Judgment of the Court was delivered by
DESAI
J.
This appeal by certificate granted
under
Article
133(1) (a) of the Constitution arises from
Civil Suit No. 23/l of
1952 filed by the appellant against 56 respondents for recovering
possession of lauds more particularly set out in the Schedule annexed
to the plaint, mesne profits, accounts and injunction, which suit was
largely dismissed and partly decreed by the trial Court but in appeals
bearing A. S. Nos. 252 and 283 of 1960 by the unsuccessful defendants and the plaintiff, respectively, was dismissed as a whole.
A brief narration of facts necessary for appreciating the contentions raised herein may be set out.
Plaintiff-appellant is the son of
late Kazim Yar Jung who was a Minister of H.E.H. the Nizam of
Hyderabad.
The father of the plaintiff obtained
grant of certain
lands in Ryalamadugu village from the Government of Nizam,
the
patta having been granted in the name of the praintiff.
At about the
time of police action in 1948 when the local conditions in Hyderabad
City and State were disturbed, the
plaintiff, bis father
Kazim Yar
Jung and bis step brother Mustafa found it difficult to even approach
their lands and the plaintiff was then contemplating to shift to Pakistan with others.
Defendant No. 1 Rami Reddy who was a police
Patel approached the plaintiff and represented that he would manage
the affairs of the plaintiff, his brother, and father, but that 1s be was
not keeping well a nominal Power of Attorney would have to be
granted to defendant no. 34 Uppara Sattayya whereupon the plaintiff,
his father and brother jointly executed a Power of Attorney, Ext. P-1
dated I 0th April 1949 in favour of defendant no. 34 which was further supplemented by the deed Ext. P-2 dated 20th April 1949. The
plaintiff alleged that in October 1949 he came to know that defendants nos. I and 34 were perpetrating fraud when on 25th October
1949 the plaintiff and his brother Mustafa published a notice in the
newspapers and the Gazette cancelling the Power of Attorney granted
in favour of defendant no. 34.
Plaintiff then came to know that defendant nos. 1 and 34 and other defendants in collusion with each
other got transferred the lands of the plaintiff for inadequate or no
consideration and that a fraud was perpetrated. The plaintiff further
alleged that the Power "Of Attorney is vague and void and inoperative
and would not clothe defendant no. 34 with legal authority to deal
with the properties in the manner in which they have been dealt
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428
SUPREME COURT REPORTS
[1979) 2 S.C.R.
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with.
At any rate, the Power of Attorney did not clothe defendant
no. 34 with the authority to sell the land and,
therefore, the pnrchasers Jrave not acquired any title to the lands purporting to have
been sold cy defendant no. 34.
The plaintiff accordingly sued for
possession, mesne profits and accounts from the defendants.
B
Different groups of defendants filed three separate written statemtnts but more or less the contentions raised in the various written
statements are identical.
The first contention is that the
plaintiff
was not the Inll and absolute owner of the suit lands but was a bcnamidar inasmuch as the lands were granted to the father of the plaintiff
who was a Minister in the Nizam's Gov'emment but the patta was
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formally taken in the name of the plaintiff who was then a minor. It
was also contended that the Power of Attorney,
Ext.
P- I
with
P-2 was legal
and
valid
and
binding
and it clothed defendant
34 with an authority to sell the lands and different parcels of lands
have been sold to different defendants for full consideration and the
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plaintiff was aware of it and is now trying to take an advantage on
the 00.sis of a technical plea.
There were some other
contentions
which at this stage are hardly relevant.
The trial Court held that the plaintiff was the full and
absolute
owner of the suit properties. The Power of Attorney Ext. P-1 was not
vitiated by fraud and has clothed defendant No. 34 with the necessary
authority to sell the lands and the sale of different parcels of lands in
favour of different defendants were not vitiated by fraud and each sale
was for consideration and binding on the plaintiff.
The Trial Conrt
further held that the properties bearing Items 27 to 40, 42-44, 46, 47,
55-67 and 69 set out in the Schedule annexed to the plaint were not
proved to have been sold, the conclusion having been based on the only
ground that no sale deeds were forthcoming and accordingly it was
held that the plaintiff was entitled to recover possession of the aforementioned pieces of land.
The trial Court accordingly dismissed the
suit except for the aforementioned pieces of land in respect of which a
decree for possession and mesne profits was granted in favour of the
plaintiff.
Two appeals came to be filed to the High Court. Appeal bearing
A. S. 252/60 was preferred by original defendants 8, 9 and 11 to the
extent decree was made against them by the trial Court. Appeal bearing A.S. 283/60 was preferred by the plaintiff to the extent the suit was
dismissed. Both the appeals came to be disposed of by a Division Bench
of the Andhra Pradesh High Court by a common judgment rendered
on 17th August 1966 by which A.S. 252/60 preferred by original defendants 8, 9 and 11 was allowed and the decree made agaimt them
--
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s. A. KHADER v. R. REDDY (Desai, !.)
429
in favour of the plaintiff was set aside, and A.S. 283/60 preferred by
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the plaintiff was dismissed.
As a consequence the entire suit of the
plaintiff came to be dismissed with costs in one set.
The plaintiff thereupon approached the High Court for a certificate
and on a certificate under Article 13 3 ( 1) (a) being granted, the plaintiff lodged the present appeal.
B
Wb.en the appeal reached the stage of ·hearing on an earlier occasion,
CMP. 17845/78 was filed requesting the Court to record a memorandum of compromise between the appellant and the legal representatives
of respondents 1, 2, 3, and respondent 34 inviting the Court to dismiss
the appeal of the plaintiff appellant against them. By an order made
(;.
by this Court, this compromise was recorded and the appeal was s?'
down for further hearing against the remaining respondents. We take
note of this compromise because on the basis of this compromise a submission has been made on behalf of the remaining respondents that the
appeal against them would no more survive.
Mr. V. Gopalakrishnayya, learned counsel for the appellant urged
that it is impermissible in law to give a joint Pow~r by three persons in
favour of one agent. Alternatively it was contended that if such a power
of Attorney is legal and valid it would clothe the agent with the only
authority to Act in respect of the joint affairs or property of the coprincipals and not for any individual affair or property of any one of
<hem. It was further urged that upon a trne construction of the authority conferred by the Power of Attorney, Ext-P-1 the scop" of authority
only encompassed the management of the joint properties of the three
co-principals or at best the management of property of each one of the
principal but it did not clothe him with an authority to sell the property
of any one of them and the situation is not improved by the supplemen-
'.ary deed, Ext. P-2. Alternatively it was cootended that if Ex. P-1
conferred an authority to sell the land it was hedged in with a pre-·
!equisite that the property can be sold to finance the litigation or to
repay the Joan, if any, borrowed for the aforesaid purpose.
In this
~ontext it was submitted that the Court should bear in mind that the
~urden is on the party who seeks to rely on the authority of the constimted attorney to establish that the impugned transaction falls within
the ambit of authority of the attorney, and in this connection it may
be borne in mind that ordinarily the courts construe Power of Attorney
strictly. It was then urged that even if it is held that by the combined
operation of Exts. P-1 and P-2 the Attorney had the authority to sell
the land he. had not acted on his own but merely completed the sale
negotiated by an outsider and thereby he acted as a rubber stamp and
such an act of the attorney would not bind the principal, and in that
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event the purchaser did not acquire any title to the land. It was alio
contended that the High Court was in error in admitting the three sale
deeds by granting CMP. 2762/61 purporting to act under Order 41,
rule 27, Civil Procedure Code, and if they are excluded from consideration, in the absence of sale deeds the decree of the trial Court against
original defendants 8, 9 and 11 will have to be restored.
On behalf of the contesting respondents it was urged that the plaintiff being benamidar, cannot maintain the suit on the allegation that he
is the full and absolute owner of the properties.
The first contention of the appellant is that it was impermissible in
law for three persons to jointly grant a Power of Attorney in favour of
defendant 34.
Barring the ipse dixit of the learned counsel nothing
was shown to us to make such a joint power impermissible in law. The
relation between the donor of the power and the donee of the power i's
one of principal and agent and the expression 'agency' is used to connote
the relation which exists where one person has an authority or capacity
to create legal relations between a person occupying the position
of
principal and third parties.
The relation of agency arises whenever
one person called the agent has authority to act on behalf of another
called the principal and consents so to act.
The relation'ship has its
genesis in a contract.
If agency is the outcome of a contract between
the principal and the agent, in order to show that three principals jointly
constituting an agent by a deed called 'Power of Attorney' was impermissib!c, provisions of Contract Act or the general law of contract should
have been shown as having been violated by such a contract.
Nothing
of the kind was pointed out to us.
On the contrary, in Halsbury's Laws
of England, Vol. I, 4th Edn. para 726, the following proposition has
been stated :
"Co-principals may jointly appoint an aj!J!nt to act for them
and in such case become jointly liable to him and may jointly
sue him."
We are in agreement with this view and, therefore, three principals
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could jointly appoint an agent.
The next limb of the submission was that if three co-principals iointly
constituted an agent then unless contrary is indicated by the deed
of
the Power of Attorney, the necessary inference would be. that the agent
can act in respect of those affairs in which all the co-principles are jointH
Iy interested. In other words, it was said that such a Power of Attorney would clothe the agent with an authority to act in respect of joint
affairs of the co-principals.
We are unable to find any force in !his
)<
.. ....
s. A. KHADER v. R. REDDY (Desai, J.)
431
argument, for what the Power of Attorney authorises depends on its
terms and the purpose for which it fs executed.
It would, therefore,
be necessary to refer to the Power of Attorney, Ext. P-1 and the supplementary deed, Ext. P-2.
Ext. P-1 is dated 10th April 1949 and
is
styled as general Power of Attorney.
The co-principals are : (1)
plaintiff Syed Abdul Khader,, (2) Kazim Yar Jung, and (3) Syed Mustafa Hussain.
The purpose for which the power was executed is set
out in Ext. P-1 in the following words :
" ... that in view of our private needs and as we are unable
to conduct cases and answer them in time, we therefore appoint
Copper Sattayya son of Coper Durgayya resident of Ghanp:ir,
Medak Taluq as our general power of Attorney to act on our
behalf and we empower the said person through this power of
Attorney that the said Muktar can conduct the cases (parvi)
of all sorts, question and answer, admit or deny, either orally
or writing on 04r behalf in all departments, civil and criminal
courts, in the High Court, in the judicial
committee, in the
Revenue Departments of the Districts, namely, in the offices of
the Ilnd, IIIrd, and Ist Taluqdars, the Tahsil Offices etc. . ..
and purchase• or sell (sic) of lands and that he is authorised
to appoint any pleader or special Muktar when occasioned
(sic) and to stop or to take or file any copies in any suit vr
to file any suit or file any written statements with his own signature to fetch any loan for our business or lands or to pay the
debts from out of the, income of the estate or to purchase or
sell the lands and to execute the sale deeds and get registered
under his signature etc .... "
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The last sentence is that "all the acts of the said Muktar shall be
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deemed to be acts done and effected by us which we hereby accept
and approve".
Subsequently on 20th April 1949 a supplementary
Power of Attorney in addition to Ext. P-1 was executed by the aforementioned three donors of Power in favour of, defendant no. 34 in which it
is 'specifically stated that they affirm earlier Power of Attorney dated
10th April 1949 and thereafter the relevant recital is as under :
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" ... But by the said document, the powers of sale and registration were not confirmed (sic) on him and that therefore
through this deed the same is hereby confirmed (sic) on him".
It was urged that the Court should bear in mind the first principle
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that a Power of Attorney has to be strictly construed. Undoubtedly,
where someone other than the person who has a right to act in respect
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of certain things has, under a contract of agency, the right to act on behalf of principal, the l\Uthority conferred by the written instrument has
to be strictly construed.
Ordinarily a Power of Attorney is construed
strictly by Courts (vide Bryant, Powis and Bryant Ltd. v. La Ba,nque du
Peuple) (').
Adopting the principle of strict construction of a Power of At<orney,
the first question that is required to be answered is whether the Power
of Attorney, Ext. P-1 wa:S meant to confer the authority on the agent to
act only in respect of the joint affairs or joint property of the co-principals or it wa·s in respect of the individual affairs and effects of each principal. In Ext. P-1 at three places the expression used is : "our Power of
Attorney to act on our be.half and we empower the said person"; then .a.-
again "on our behalf in all departments", and then lastly, "acts done and .....
effected by the agent shall be deemed to be the acts done and effected by ·
+-.
the principals." Mr. Gopalakrishnayya said that it would be extraordinary to hold that the expression "on our behalf" as disclosing a conjoint action on behalf of more than one person could ever be interpreted
by any canon of construction as one on behalf of each individual.
He
said that apart from the strict construction the Court must put on
a
Power of Attorney, where the terms of the written contract are clear and
unambiguous it is impermissible for the Court to take into consideration
the other circumstances to determine the intention of the parties.
When
a contract is reduced to writing, undoubtedly the Court must look at the
terms of the contract and proceed on the assumption that tho parties
intended what they have said and if the terms are unambiguous the Court
must give effect to the terms of the contract. However, it is well establish
ed that in considering a contract it is legitimate to take into account the
surrounding circumstances for ascertaining the intention of the parties
(vide Modi & Co. v. Union of India).(')
Exhibit P-1 being a Power of Attorney granted by three co-principals
in favour of one agent, the expression "on our behalf" would hardly be
decisive of the scope of authority conferred by the deed.
The circmnstances in which such Power of Attoreny came to be executed and the
fact that thre.e different persons though near re!ations but having no
joint property or venture joined in executing a Power of Attoreny and
the purpose and object for which it was executed when taken into consideration would throw light on the truB nature of the authority conferred by the deed.
In this connection it is an admitted position that
the Power of Attorney was executed in April 1949 and that too lil the
-(I) -fls93j A.C. 170 at 177.
-.2) [19681 2 S.C.R. 565.
s. A. KHADER v. R. REDDY (Desai, J.)
433
State of Hyderabad, the erstwhile Nizam's State.
In the
wake
of
police action in the fall of 1943 and thereafter there were unusually disturbed conditions in Hyderabad State.
Plaintiff himself has stated in
plaint para 1 that the conditions in Hyderabad were disturbed, that
like himself, his father and brother found it difficult to make contact
with their properties and it was being contemplated by the plaintiff that
he might shift to Pakistan with others.
All the three persons, i.e. hiS
father, brother and the plaintiff found it difficult even to approach the
properties of each of them and that all of them were contemplating to
migrate to Pakistan.
In his belated evidence in Court after defendants' evidence was closed the plaintiff re-affirmed that after police action
he lost possession of his lands and it was difficult to approach the lands
or manage the same.
Even his clerk was not willing to undertake the
responsibility.
Further there is no e,vidence to show that all the three
co-principals had any joint property or any joint business or any joint
venture in which they were jointly iritere·sted.
Plaintiff says in his evidence that all the three joined in executing Power of Attorney Ext. P-1
because each of them had his land in that area and each was unable to
manage bis land.
In this background it would be futile to say that the
three co-principals executed the power of Attorney in favour of the agent
to lookafter their joint affairs and joint property alone.
In fact, plaint
para l leaves no room for doubt that each of the three co-principals
neither could manage nor could have access to each one's own property
and that each one was contemplating to migrate to Pakistan and that
therefore they all gathered together and executed one Power of Attorney
in favour of defendant no. 34 as a matter of convenience for dealing
with the property of each one of the co-principals. It thus clearly traru;-
pi:·es that each one of the co-principals had his land, that each one of
them was unable to manage his land, and that all the three of them were
contemplating to migrate to Pakistan and that they wanted possibly lO
dispose of their lands,.collect cash and skip over to Pakistan. If Power
of Attorney Ext. P-1 was executed in this background it would illumine
the scope and ambit of authority conferred by Ext. P-1.
It would
clearly appear that each one wanted to con·stitu'e defendant 34 to be
his agent in respect of his property.
Therefore, the contention that
the power of attorney Ext. P-1 read with Ext. P-2 was a joint power only
in respect of joint properties of the three co-principals must be rejected.
An incidental submission may be disposed of' at this stage. It was
urged that the Power of Attorney Ext. P-1 is legally invalid and defective
B
c
D
E
F
G
in form and that the supplementary document Ext. P-2 does not render
H
in valid. The defect pointed out is that when Ext. P-1 was offered for
registration the Sub-Registrar has nowhere noted in his endorsement
A
B
c
D
E
F
G
II
434
SUPREME COURT REPORTS
(1979) 2 S.C.R.
that the donors of the power who executed the Power of Attorney Ext.
P-1 were identified to him by someone known to him or they were personally known to him. Undoubtedly the Sub-Registrar in order to be
satisfied that there is no impersonation may require some person known
to him to iden\ifY those who admit execution before him bnt in case the
persons who have executed the deed before him are known to him the
failure to endorse that fact on the deed does not render the deed invalid.
In any event if those who executed the deed admit having executed the
deed, the fact that the Sub-Registrar failed to endorse the fact of the
persons being known to him would not render the deed invalid.
A
General Power of Attorney is not .a compulsorily registrable document.
No rule or regulation was pointed out to us in support of the submission
that it was obligatory for the Sub-Registrar to make the endorsement that .r-"r
those who have executed the deed were either personally known to him
or were identified by someone known to him. Therefore, there is no
...,..__
me.rit in the contention and it must be rejected.
The next contention is that upon a true construction of Ext. P-1,. the
authority conferred thereby was to manage the property of the donors
of the power and it did not confer any authority to purchase or sell the
property.
Simultaneously it was stated that Ext. P-2 does not improve
the position in this behalf.
Both the Courts have rejected this submission and for very good and convincing rnason·s.
A bare pernsal
of
Ext. P-1 clearly shows that apart from the power to manage the property, a further power to purchase and sell lands was conferred on the
agent.
Power to purchase and sell lands has been expressly mentioned
at two place's in Ext. P-1.
But even apart from this, the• plaintiff in
his cross-examination has admitted that after executing Ext. P-1 the
Registrar pointed out that the Power of Attorney Ext. P-1 does not
confer the authority to seU land and offer for registration sale deed and
requested them to execute a supplemental document expressly conferring such authority and he identified Ext. P-2 to be the supplemental
document.
Ext. P-2 has been reproduced in extenso by the High Court
in its judgment and in no uncertain and most unan1biguous terrus
it
is stated therein that the power to sell and registration of sale deed was
conferred by Ext. P-2.
But even if Ext. P-2 were to be excluded from
consideration, the P6Wer of Attorney Ext. P-1 clearly confers an authority on the agent to sell the property.
If we recall at this stage
the
circumstances in which Ext. P-1 came to be executed in favour of defendant no. 34, it clearly appears that plaintiff,, his fathe-r and brother were
keen to get the lands sold as they were contemplating to migrate
to
Pakistan.
In the face of this express and explicit power it could not
be said that the authority was ronferred only to manage the property.
.. ...,,..,.
s. A. KHADER v. R. REDDY (Desai, J.)
435
In Ext. P-1 the expression 'to manage the property' is nowhere to be
found.
On the contrary the general Power of Attorney is couched in
a language which confers wide authority to file suits, defend actiMs,
engage advocates, appear in various offices, purchase and sell land and
.execute sale deeds and get them registered, to borrow money, to employ
persons needed for carrying out affairs and to dismiss them.
It is diffi-
;;ult to appreciate the submission that the authority was only to manage
the property.
The submission is not borne out by the contents of Exts.
P-1 and P-2.
Incidentally in this connection it was urged that the power to pur-
·Chase and sell land and to execute documents and to offer them for registration does not include the power to sell agricultural land.
This has
only to be mentioned to be rejected because the expression 'lands' would
include both agricultural and non-agricultural land.
The next contention is that even if the Court were to accept that the
authority conferred by the Power of Attorney encompasses the authority
A
B
c
to sell land, the power to sell land was hedged in with a prc-·condition
D
or with a pre-requisite that the land could be sold either for financing
litigation or if for that purpose a loan was borrowed, to repay the loan.
Sustenance is sought to be drawn for this submission from the following
few Jines in Ext. P-1 :
" ... and purchase or sell ('sic) of lands and that he
is
authorised to appoint any pleader or special Muktar when JCcasioned (sic) and to stop or to take or file any copies in any
suit or to file any suit or file any written statements with his
own signature to fetch any loan for our business or lands or
to pay the debts from out of the income of the c'state or to purchase or sell the lands and to execute the sale deeds and get
registered under his signature and to obtain money or to enter
into a compromise in any suit or get it settled through arbitration or to withdraw any suit. .. etc."
E
F
In Ext. P-2 the supplemental Power of Attorney, it is stated that the
power fer sale and registration of documents was conferred on the agent
G
The construction suggested is not warranted by the language used in
Ext. P-1.
The power to purchase or sell land was not hedged in by
any pre-requisite or pre-condition.
Each recital constitutes a separate
power, namely, (i) power to purchase. or sell land, (ii) power to appoint
a pleader or Mukhtar, (iii) power to file suit or appear and file written
statement,. (iv) power to borrow money or to enter into any compromise
H
in any suit or get it settled through arbitration and withdraw any suit
Each was an independent power. There is nothing in Ext. P-1 which
A
B
c
436
SUPREME COURT REPORTS
[J 979] 2 S.C.R.
would even remotely indicate that the land could be sold only for financing the litigation or if for that purpose a loan was borrowed, to repay
the lo1t11
Such power of wide amplitude conferring such wide authority
cannot by construction be narrowed down to deny an authority which
the donor~ expressly granted.
The ordinary authority given in one
part of the instrument will not be cut down because there are ambiguous
and uncertain expressions elsewhere but the document will be considered as <_l whole for interpretation of particular words or directions
(see Haisbury's Laws of England, 4th Edn., Volume I, Para 733). The
contention, therefore, must be negatived.
The next contention is that even if Ext. P-1 confers >ruthority
on
defendant 34 to sell land, the authority so conferred on defendant 34 .- ~
was to aet on his own and not at the behest of an outsider or as a rubber
stamp of someone and that in this case evidence clearly shows that it
~
w1s Kazim Y ar Jung, the father of the plaintiff who entered into an agreement, Ext. D-18 dated 14th February 1949, with defendant no. 1 for
D
sale of land and the agent defendant 34 merely rubber stamped the sale
and executed the sale deed and that such a sale is not binding on the
plaintiff.
At first blush the argument is really attractive but it does
not slllnd scrutiny.
Land involved in the dispute was gran'ed by the
Nizam when the father of the plaintiff was a Minister in the Nizam's
Government.
Patta evidencing the grant was taken in favour of the
E
plaintiff who was then a minor.
The father of the plaintiff really beliF
G
H
eved that he was the owner of the land and in fact on 20th October
1949 he wrote to Tahsildar, Medak that his son was a bcnamidar and
thal the lands may, therefore, be transferred in his name.
Thus, the
father of the plaintiff acted as if he was the owner of the land but when - --V
a contention 01; behalf of the respondents that the plaintiff was a b.!namidar would be presently examined, it would be j}~inted out that the plain-
....- ·
tiff wa;; the real owner and was not ~ ber,amdar. That is the true legal
position. The fact, however, remain; :h1t the father of the plaintiff who
must be a man of considerable influence being a Minister in the Government of Nizam, must have acted as if he was the owner of the land. Undoubtedly, the agreement Ext. D-18 for sale of land was entered into
between the father of the plaintiff and defendant no. I and pursuant to:
this agreement defendant no. 34 executed a sale deed in favour of defendant no. 31, but it may be noticed that the agreement Ext. D-18 was entered into two months prior to the grant of Power of Attorney, Ext.
P-1. There is, however, evidence to show that the agreement for sale
of land and the ·sale deed were taken in the presence of and t0 the knowledge and with the full acquiescence of the plaintifl'.
'Witness Kishta
Reddy, D.W. 2 has stated in his evidence that defendant I Rami Reddy
s. A. KHADER v. R. REDDY (D,sai, J.)
437
paid the consideration for purchase of land pursuant to agreement Ext.
D-18 to plaintiff in his own prescilce. He has further stated that Kazim
Yar Jung, Plaintiff's father and daughter of Kazim Yar Jung and both
of his sons including the plaintiff were present when the amount of consideration was paid. This witness's presence at the time of payment of
consideration cannot be disputed because receipt Ext. D-16 which evidences payment of consideration for the sale of land to defendant No. 1
though signed and passed by Kazim Yar Jung, the father of the plaintiff,
was attested by him. This evidence which has remained uncontroverted would show that the consideration for sale of land in favour of defendant 1 pursuant to agreement of sale Ext. D-18 was paid to the palintill'
#m the presence of this witness and plaintiff accepted the same though the
Y
receipt Ext. D-16 was passed by the father of the plaintiff. A feeble at-
'
tempt was made to explain this inconvenient evidence by saying that in
--->
agreement Ext. D-18 lands are not 'specifically described by setting out
the Survey Numbers or the Khata Numbers and as in that very village
plaintiff's father had also his lands, the plaintiff may have as well remained
under the impression that the father had sold his own lands and, therefore,
could not raise any objection about the sale.
This explanation cannut
be swallowed for the obvious reason that there was no reason for the
plaintiff to accept the consideration or the consideration being put ·in his
bands if his land was not being sold.
Even if the father of the plaintiff
could be said to be an ostensible owner of the land and he purported to
sell the land, the plaintiff the real owner as he claimed to be had acquiesced in the same and accepted the.