KUMAR NARENDRA NATH MITTER Vs. SMBIMALA SUNDARI DEBI

JUDGEMENT

(1.) The plaintiff in this suit asks for an account against the first defendant who is the widow and personal representative of one Bangsadhar Chakravarty who died on 5 July 1932. The cause of action arose out of a written agreement dated 10 November 1925, whereby Bangsadhar Chakravarty undertook the duties of Naib of a certain Touzi belonging to the plaintiff. The other defendants are sued as the guarantors or the representatives of the deceased guarantors of the proper performance by Bangsadhar Chakravarty of his obligations under the agreement. The defendants Sridhar and Basanta are brothers of Bangsadhar Chakravarty, and surviving guarantors. The defendants Shibnath and Shambhunath are the representatives of Adhar, a deceased guarantor who died in 1935, and the defendants Madhai, Nitai and Khoka are the representatives of Sreehari another deceased guarantor who died in 1935. No written statements have been filed by the representative of Adhar or by Basanta. Bimala Sundari the widow and the representative of Sreehari have filed a written statement but have not appeared at the hearing, and the only defendant who has effectively contested the plaintiffs claim is Sridhar. His main defence is based on the fact that the agreement of 10 November 1925, was not executed by him personally but by Bangsadhar Chakravarty purporting to act under a general power of attorney executed by Sridhar and Sreehari in favour of Bangsadhar Chakravarty in January 1910. The Touzi which is the subject-matter of 1925 agreement is situated in the District of Khulna, and the parties are residents of that district, where the properties charged as security under the agreement are also situated. It is admitted that at the date of the execution of the power-of-attorney Sridhar, who is in Government employment, was stationed at Shillong. Sridhar contends that the execution of the instrument of 1925 by Bangsadhar Chakravarty on his behalf was not authorized by the power.

(2.) He first submits that what the power contemplates is not authority of the agent to agree on the principal's behalf, but only authority to execute agreements, that is to say, authority to take the steps necessary to reduce an agreement, of which the principal has approved personally to legal or formal shape. He relies on Janki Pershad v, Yahia Hossain (1912) 16 CLJ 119 in which it was held that where an agent had authority under a power to execute deeds of sale and to admit execution thereof he could not enter into an enforceable agreement for sale of the principal's property. The case however is no authority for saying that in the absence of express authority by the principal a completed deed of sale executed by the agent would not have effectively transferred the property. The clause in the power relied on by the plaintiff runs thus: To sign, execute and deliver for us in our names jointly or severally any release or re-conveyances of any money owing, due or payable to us jointly or severally, to execute and deliver any, lease or counterpart or pattah, or kabuliat in respect of any property which we have or which we may secure hereafter jointly or severally and to sign or execute any bond. Indemnity bond, jamini kabuliat, suretyship bond, mortgage or any other documents purporting to create any charge, lien or incumbrahces upon our property or upon our claim over any property which we could have signed jointly or severally, were we personally present and did the same.

(3.) In my opinion it would be unreasonable to construe the concluding words "which we could have signed jointly or severally, were we personally present and did the same" to refer only to the physical act of signature, and I think "sign" in the clause means to render legally effective by signature. Possibly Puran Chand V/s. Monmotho Nath (1928) 15 AIR PC 38 is of some assistance to the plaintiff. Viscount Sumner observes at page 84: They (the words "person executing") mean something more, namely the person who by a valid execution enters into obligation under the instrument.