PALANI VANNAN Vs. KRISHNASWAMI KONAR

JUDGEMENT

(1.) This appeal can be dealt with very briefly because it raises a short but interesting question of construction and its decision depends on the view I take of the construction of a single document. The short facts are as follows: There was a preliminary decree in a mortgage suit, dated the 14 March, 1936 in favour of one Sethu Madhava Rao against, amongst others, the present appellants. There was a final decree in August, 1936. On the 25 July, 1937 the decree was assigned by Sethu Madhava Rao to one Govinda Konan. On the 19 July, 1939, Govinda Konan executed a power of attorney, Ex. D-1 to one Vedavyasachar authorising him to execute the decree. On the 3 February, 1941, Govinda Konan assigned the decree to Krishnaswami Konar, the present first respondent. On the 6 March 1941, by Ex. P-3, Govinda Konan sent a notice to the judgment debtors and to Vedavyasachar revoking the power of attorney. The execution petition before the lower Court was to recognise the assignment, dated 3 February, 1941 by Govinda Konan. It should be added that on the 10th and 11 July, 1942 there was a compromise between Vedavyasachar and the appellants. The question that arises in this appeal is, was the notice, Ex. P-3, effective?

(2.) It is argued for the appellants that it is not, by reason of the fact that the power of attorney Ex. D-1 is irrevocable, it being a power of attorney creating an agency coupled with an interest under Section 202 of the Contract Act. We have had the advantage of most interesting arguments from both the earned Counsel who have appeared for the parties. There is no difficulty with regard to the law. It would seem beyond doubt that the section does no more than state the effect of the English decisions under common law. So long ago as 1866, Couch, C.J., stated the legal position with regard to these powers of attorney. He said in Hurst V/s. Watson (1866) 2 Bom.H.C.R. 400 at page 403., Where an authority or power is coupled with an interest, it is irrevocable, unless there is an express stipulation to the contrary; but the right of the agent to remuneration, although stipulated for in the form of part of the property to be produced by the exercise of the power, is not an interest in this sense.

(3.) I think the learned Chief Justice when making those remarks must have had in mind the decision in Smart V/s. Sandars (1848) 5 C.B. 895, which is one of the sources of the law relating to this topic. Wilde, C.J. observes as follows-- But, it is said, a factor for sale has an authority as such (in the absence of all special orders) to sell; and, when he afterwards comes under advances, he thereby acquires an interest; and, having thus an authority and an interest the authority becomes thereby irrevocable. The doctrine here implied, that, whenever there is in the same person an authority and an interest, the authority is irrevocable, is not to be admitted without qualification.