19. A power of attorney is not a sale.
A sale involves transfer of all the
rights in the property in favour of the transferee but a power of attorney
simply authorises the grantee to do certain acts with respect to the property
including if the grantor permits to do certain acts with respect to the
property including an authority to sell the property.5
20. In the case of State of Rajasthan and Others v. Basant Nahata,6 it
was held that:
“13. A grant of power of attorney is essentially governed
by Chapter X of the Contract Act. By reason of a deed of power
of attorney, an agent is formally appointed to act for the
principal in one transaction or a series of transactions or to
manage the affairs of the principal generally conferring
necessary authority upon another person. A deed of power of
attorney is executed by the principal in favour of the agent. The
agent derives a right to use his name and all acts, deeds and
things done by him and subject to the limitations contained in
the said deed, the same shall be read as if done by the donor. A
power of attorney is, as is well known, a document of
convenience.
xxxx
52. Execution of a power of attorney in terms of the
provisions of the Contract Act as also the Powers of Attorney
Act is valid. A power of attorney, we have noticed hereinbefore,
is executed by the donor so as to enable the donee to act on his
behalf. Except in cases where power of attorney is coupled with
interest, it is revocable. The donee in exercise of his power
under such power of attorney only acts in place of the donor
subject of course to the powers granted to him by reason thereof.
He cannot use the power of attorney for his own benefit. He acts
in a fiduciary capacity. Any act of infidelity or breach of trust is
a matter between the donor and the donee.”
5 Dr. Poonam Pradhan Saxena, Property Law, Third Edition, 2017 (Lexis Nexis), p.
301
6 (2005) 12 SCC 77
13
21. Further, the position of a power of attorney with respect to
conferment of title was explained by this Court in the case of Suraj Lamp
(supra), thus:
“20. A power of attorney is not an instrument of transfer in
regard to any right, title or interest in an immovable property.
The power of attorney is creation of an agency whereby the
grantor authorises the grantee to do the acts specified therein, on
behalf of grantor, which when executed will be binding on the
grantor as if done by him (see Section 1-A and Section 2 of the
Powers of Attorney Act, 1882). It is revocable or terminable at
any time unless it is made irrevocable in a manner known to law.
Even an irrevocable attorney does not have the effect of
transferring title to the grantee.”
22. Having discussed the position of law, it is essential to peruse the
recitals of the General Power of Attorney, which is on record and pressed
into service by plaintiff. The said GPA merely authorises the grantee to
manage the affairs of the suit property, which includes the power to let out
the property on rent, and create a mortgage of the same, etc. However, it is
silent on the aspect of conveyance. Be that as it may. The recitals of the
power of attorney would indicate the intent of the grantor is to limit the
powers of the grantee to only manage the suit property, and not to create
any interest in his favour, which is in consonance with the settled position
of law as discussed above that a power of attorney is an agency by which
the agent derives the authority or the right to enter into transactions on
14
behalf of the principal. Even if we accept the validity of the Power of
Attorney in favour of the plaintiff, still it does not confer a valid title on
him with respect to the suit property.
Will
23. The third document that the plaintiff has relied upon to claim his
title over the property is a Registered Will dated 16.05.1996 said to have
been executed by his father. The term “Will” has been defined under
Section 2(h) of the Succession Act, 1925 as “the legal declaration of a
testator with respect to his property which he desires to be carried into
effect after his death”. Its essentials have been further enumerated by this
Court in the case of Mathai Samuel and Others v. Eapen Eapen (Dead)
by Lrs. And Others7 thus:
“12. Will is an instrument whereunder a person makes a
disposition of his properties to take effect after his death and
which is in its own nature ambulatory and revocable during his
lifetime. It has three essentials:
(1) It must be a legal declaration of the testator's intention;
(2) That declaration must be with respect to his property; and
(3) The desire of the testator that the said declaration should be
effectuated after his death.
13. The essential quality of a testamentary disposition is
ambulatoriness of revocability during the executant's lifetime.
Such a document is dependent upon the executant's death for its
vigour and effect.”
7 (2012) 13 SCC 80
15