1. This Second Appeal has been preferred by the defendants against the judgment and decree dated 13.05.2015 passed by the learned Principal District Judge, Gandhinagar in Regular Civil Appeal No.1 of 2015 confirming the judgment and decree of the learned Trial Court passed in Special Civil Suit No.31 of 1999 dated 28.02.2014, under Section 100 of the Code of Civil Procedure, 1908.

2. The appellants are the original-defendants and the respondents are the original-plaintiffs. For the brevity and convenience, the parties are referred to in this Judgment as per the character assigned to them by the learned Trial Court.

3. The brief facts of the case are as under :

3.1 It pertains to new tenure land situated at Revenue Survey No. 944/1 ad-measuring 0.28 Gunthas and Revenue Survey no. 941/1 ad-measuring 0.22 Gunthas situated at Uvarsad : Taluka, District Gandhinagar, which was originally belong to one Motibhai Hirabhai, who was the father of the respondent - original plaintiff and thereafter, the said suit land stood mutated in the name of the plaintiff and her mother Chanchalben Motibhai.

3.2 That the plaintiff and Chanchalben Motibhai gave a power of attorney on 29.03.1989 in favour of Manubhai Chotabhai (defendant No.1). After her death, the plaintiff issued a Notice on 07.05.1996 to the defendant No.1 for cancelling the said Power of Attorney, wherein, he was specifically informed regarding the suit land. The said Notice was returned with an endorsement of refused. According to the plaintiff, though the Power of Attorney was cancelled, the defendants filed a Civil Suit on 18.05.1996 in the Civil Court, Gandhinagar and prayed that the defendants (plaintiffs of this case) do not have any right to cancel the Power of Attorney and he had also sought for interim injunction, which came to be rejected by the learned Trial Court.

3.3 According to the plaintiff, though the Power of Attorney was cancelled that the defendants initiated proceedings of conversion of land from new tenure to old tenure and obtained order accordingly from the authority on 31.03.1998 and on that basis, defendant No.1 has executed one sale deed in favour of his son - defendant No.2 vide registered sale deed dated 02.04.1998, which are not binding to the plaintiff. It is also alleged that the defendants had no any right or title over the land since the plaintiff was residing at Ahmedbad. Defendant No.1 executed sale deed and also trespass over the land and on that basis, the plaintiff filed a suit for cancellation of the registered sale-deed and for declaration and injunction restraining the defendants to enter upon the land and do anything and creating third party interest.

3.4 The defendants have resisted the suit by filing reply at Exh.17 and denied all the contentions of the plaintiff. According to the defendants, as a plaintiff and his mother were intended to sale the property and since it could not be transferred without converting it in old tenure land they executed Power of Attorney in favour of the defendant No.1 with interest thereon and has accepted the amount of Rs.63,100/- and has also handed over the possession of the land in question to defendant No.1. The defendants took stand that having possession of the suit land and on that basis, they have acted upon to obtain necessary permission from the authorities for conversion of land from new tenure to old tenure and also paid amount of premium. It is also contended that since there was a rise in the price of land, the plaintiffs wanted to resile from the obligation under the Power of Attorney, he had to file the suit against them.

3.5 It is also contended that the defendant No.2 is a bona fide purchaser of the land and that has paid requisite consideration and has become owner of the property by registered sale deed and the plaintiff has no right to restrain them from using land in question and the suit itself is liable to be dismissed.

4. On the basis of the pleadings of the parties, the learned Trial Court has framed issue at Exh. 23 to the following effects :-

“1. Wheteher the plaintiff proves that the he is owner and occupier of the suit property

2. Wheteher the plaintiff proves that power of attorney executed by him is favor of defendant no. 1 on 29-07-1989 is cancelled on 07-05-1996. So defendant no. 1. has no right to sell the suit property to defendant no. 2

3. Wheteher the plaintiff proves that sale deed executed in favor of defendant no.2 on 02-04-1998 is false, frivolous, void & ab-initio 4. Wheteher the plaintiff proves that he is entitled to get the possession of the suit property from defendants

5. Wheteher the defendant proves that he has purchased the suit property from the plaintiff and paid sale price of Rs. 63100/-

6. Wheteher the plaintiff is entitled to get the relief as prayed for

7. What order and decree ”

5. After perusing the evidence on record and hearing both the sides, the learned Trial Court has decided Issue Nos.1, 2, 3, 4 and 6 in affirmative and Issue No.5 in negative and ultimately decreed the suit of the plaintiff.

6. Being aggrieved against the said judgment and decree of the learned Trial Court, the defendants – appellants preferred Regular Civil Appeal No.1 of 2015 before the Court of learned Principal District Judge, Gandhinagar. It has raised various issues, Appellate Court has also framed issues in the said judgment in para 4, which reads as under :

“(i) Whether the Trial Court has erred in holding that the appellant No.1 was aware of cancellation of power of attorney

(ii) Whether the Trial Court has erred in holding that as the power of attorney is cancelled, appellants have no right to suit property to the defendant No.2

(iii) Whether the Trial Court has erred in holding that the sale deed in favour of appellant No.2, dated 02.04.1998 is false, frivolous and ab-initio void

(iv) Whether the order passed by the 7th Additional Senior Civil Judge, Gandhinagar in Special Civil Suit No.31/1999, dated 28.02.2014 is erroneous and having mis-conception of facts and law

(v) What order

7. After hearing both the sides, the learned 1st Appellate Court has answered all the points in negative and ultimately dismissed the appeal.

8. Vide order dated 08.09.2016, the present Second Appeal has been Admitted for the following substantial questions of law:

(A) Whether in the facts and circumstances of the case in view of the provisions of the POWER OFTORNEY ACT, read with the provisions of Contract Act relating to agency and the TRANSFER OF PROPERTY Act, whether the Courts below have erred at law and on facts in holding that poa in the present case could have been cancelled without serving legal notice as required at law And whether courts below have erred in interpreting the poa in the present case, which was in the nature of irrevocable poa and coupled with interest and having parted with the possession of suit lands and receipt of sale consideration, whether the plaintiff was estopped from filing and seeking the prayers as prayed in suit

(B) Whether in the facts and circumstances of the case, when the original plaintiff himself admitted that, he sent cancellation notice to poa holder at a wrong address, where he was not residing, at all and when there was no revocation of poa by public notice, whether the judgment and decree of courts below requires to be set aside

C) Whether in the facts and circumstances of the case, the courts below have erred at law and have committed material irregularity in not framing proper issues questions for determination, looking to pleadings and contentions of the defendants

(D) Whether in the facts and circumstances of the case, the Courts below have erred in coming to the conclusion that the suit filed by the plaintiff requires to be allowed and whether the courts have committed material jurisdiction errors by not applying mind to relevant facts and got influenced by irrelevant facts

9. Heard learned Senior Counsel Shri K.V. Shelat for the appellants (defendants), learned Senior counsel Shri Yatin Oza with learned advocate Mr. M.C. Barot for the respondent No.1 (original plaintiff) and learned Senior Counsel Shri R.S. Sanjanwala assisted by learned advocate Mr. M.A. Mehta for the respondent No.2 at length. Perused the judgment and decree passed by both the Courts below and the records and proceedings .

10. My findings on the aforesaid questions of law, for the reasons given below, are as under :

(i) In the negative.

(ii) In the negative.

(iii) In the negative.

(iv) In the negative.

Reasons

11. Point Nos. (i) to (iv) Since the facts of the case and the legal aspects involving all the questions of law are interconnected, to avoid repetition of the same, all are discussed together.

12. Learned Senior Counsel Shri Shelat for the appellants has vehemently submitted that the owners of the land are not staying at Village and they are staying at Ahmedabad. He has submitted that plaintiff and his mother were desirous of selling the land, which is of new tenure land, they apprehended defendant No.1 and executed the Power of Attorney coupled with interest on 29.03.1989 in his favour. He has also vehemently submitted that after receiving the substantial amount of consideration, which was reflected from the Power of Attorney, interest was created in favour of the Power of Attorney holder in relation to the land in question. According to him, since the Power of Attorney was coupled with interest, even after death of the mother, the Power of Attorney cannot come to an end and it subsists forever. He has submitted that the main reason for giving such irrevocable Power of Attorney coupled with interest was that the subject land was restricted tenure land with restriction under Section 43 of the Tenancy Act. He has vehemently submitted that at the time of execution of such Power of Attorney in favour of the defendant No.1, possession of the land was also handed over to him and thereafter, the owner never visited the suit premises.

12.1 He has vehemently submitted that the defendant No.1 have got converted the new tenure land to old tenure land vide order dated 31.03.1998 and has also paid premium as demanded by the Government. Regarding the alleged Notice issued by the plaintiff to the defendant No.1 of cancellation of Power of Attorney, he has submitted that the plaintiff in his evidence has accepted that it was sent to defendant No.1 at wrong address. According to him, when there was no actual notice of cancellation of Power of Attorney by public notice or to the proper address of the defendant No.1, such Notice cannot be treated as a proper Notice to the defendant No.1.

12.2 He has submitted that after obtaining the necessary permission of conversion of land, the Power of Attorney holder defendant No.1 has sold it to the defendant No.2. According to him, defendant No.2 is a bona fide purchaser of the land. He has also submitted that considering the provisions of the Power of Attorney Act read with the provisions of Contract Act and the Transfer of Property Act, once the right of the property has already been conveyed by owners of the land in favour of the Power of Attorney, the original owners have no right to cancel the Power of Attorney unilaterally. He has submitted that the entire exercise undertaken by the plaintiff in filing the suit is also not proper one. He has submitted that there was no public notice issued by the plaintiff cancelling the Power of Attorney in favour of the defendant No.1 and therefore, whatever action has been undertaken by the defendant No.1 was within his authority and the plaintiff cannot challenge it afterwards. Learned Senior Counsel Mr. Shelat has also referred to the oral and documentary evidence and submitted that as per evidence on record, at the time of execution of the Power of Attorney, Rs. 61,000/- has been paid and thus it was not a simple Power of Attorney, but it was a Power of Attorney coupled with the interest. He has submitted that even if Chanchalben has died, Power of Attorney subsist as it was the Power of Attorney granted coupled with the interest. He has also submitted that as the plaintiffs were trying to interfere with the exercise of powers by the Power of Attorney, the defendant No.1 had filed a suit but that facts does not ifso facto suggests that the Power of Attorney had knowledge of the cancellation of the same. He has submitted that the Power of Attorney given to the defendant No.1 was irrevocable with interest and therefore, he can do anything, whatever he likes and there is no any limit over the exercise of powers by him.

12.3 Learned Senior Counsel Mr. Shelat for the defendants – appellants has vehemently submitted that both the Courts below have misread the entire oral and documentary evidence and not considered the same properly. He has submitted that the impugned judgment and decree of both the Courts below are not sustainable in the eyes of law and the same needs to be set aside by this Appellate Court and to decide the substantial questions of law in favour of the appellants and to dismiss the suit of the plaintiffs with costs.

13. Shri Shelat has relied upon following decisions in support of his submission :

(i) Ranjit Kumar Karmakar @ Dulal Karmakar vs. Hari Shankar Das reported in 2019 LawSuit (SC) 1077, paras 12 and 13 read as under:

“12. Section 100 (5) of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), in express terms, provides that the second appeal shall be heard only on the substantial question(s) of law framed by the High Court under Section 100 (4) of the Code. Therefore, the High Court has to confine its inquiry to the question(s) framed and not beyond it.

13. The proviso to sub-section (5) of Section 100 of the Code also enables the respondent to raise a plea at the time of hearing that the questions framed either do not arise in the case or the questions framed are not the substantial questions of law. At the same time, the High Court has the jurisdiction to frame any additional question(s) of law but this the High Court can do by assigning the reasons.”

(ii) Seth Loon Sethiya v. Ivan E. John and others reported in AIR 1969 Supreme Court 73, especially para 5, which reads as under :

“8. There is hardly any doubt that the power given by the appellant in favour of the bank is a power coupled with interest. That is clear both from the tenor of the document as well as from its terms. Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked. The document itself says that the power given to the bank is irrevocable. It must be said in fairness to Shri Chagla that he did not contest the finding of the High Court that the power in question was irrevocable.”

(iii) Tmt. Kasthuri Radhakrishnan and others v. M. Chinniya and another reported in AIR 2016 SUPREME COURT 609, especially para Nos.28, 41 to 44 which reads as under:

“28) Learned counsel pointed out that in these circumstances any act done by Dhanapal in relation to suit premises including creation of tenancy was an act done for and on behalf of A. Radhakrishnan. It was, therefore, urged that the tenancy was, as a fact, between A. Radhakrishnan being owner/landlord of suit premises and respondent No.1 as his tenant which later devolved on the appellants after the death of A. Radhakrishanan by operation of law thereby conferring a right on the appellants as co-owners of suit premises to file the eviction petition against respondent No.1 for his eviction from the suit premises.

41) In our opinion, Dhanapal was a power of attorney holder of A. Radhakrishnan. He executed the tenancy agreement on behalf of the original owner – A. Radhakrishnan in favour of respondent No.1. Such act done by Dhanapal did not create any right, title and interest in his favour and nor he ever asserted any such right in himself and indeed rightly qua A. Radhakrishnan or the appellants in relation to suit premises. That apart, respondent No.1 in clear terms admitted in his evidence and in the pleading of cases filed by him against the appellants about his status as being the tenant. In the light of this legal position, the High Court should have held this issue in appellants’ favour.

42) The law relating to power of attorney is governed by the provisions of the Power of Attorney Act, 1982. It is well settled therein that an agent acting under a power of attorney always acts, as a general rule, in the name of his principal. Any document executed or thing done by an agent on the strength of power of attorney is as effective as if executed or done in the name of principal, i.e., by the principal himself. An agent, therefore, always acts on behalf of the principal and exercises only those powers, which are given to him in the power of attorney by the principal. Any act or thing done by the agent on the strength of power of attorney is, therefore, never construed or/and treated to have been done by the agent in his personal capacity so as to create any right in his favour but is always construed as having done by the principal himself. An agent, therefore, never gets any personal benefit of any nature. Applying the aforesaid principle, this Court in Suraj Lamp and Industries Private Limited (2) vs. State of Haryana & Anr., (2012) 1 SCC 656 [LQ/SC/2011/1337] held in paragraphs 20 and 21 as under:

“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.

21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, [LQ/SC/2005/898] this Court held: (SCC pp. 90 & 101, paras 13 & 52) “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.

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.” An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.” This was followed by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust, (2012) 8 SCC 706 (para 20)

43) When we apply this well settled principle of law to the facts of the case in hand, we are of the considered view that when Dhanapal, who was acting as an agent of A. Radhakrishnan on the strength of power of attorney, executed the tenancy agreement with respondent No. 1 in relation to the suit premises then he did such execution for and behalf of his principal - A Radhakrishnan, which resulted in creating a relationship of landlord and tenant between A. Radhakrishnan and respondent No. 1 in relation to the suit premises. In this execution, Dhanapal being an agent did not get any right, title and interest of any nature either in the suit premises or in tenancy in himself. The effect of execution of tenancy agreement by an agent was as if A. Radhakrishnan himself had executed with respondent No.1.

44) In view of the foregoing discussion, we are of the considered opinion that the High Court was not right in holding that the tenancy in relation to suit premises was with Dhanapal. We cannot thus concur with the finding of the High Court and accordingly reverse the finding and hold that the appellants were able to prove that the tenancy in relation to the suit premises was between A. Radhakrishnan and respondent No.1 and on the death of A. Radhakrishnan, it was created between the appellants and respondent No.1 by operation of law which entitled the appellants to maintain the eviction petition against respondent No.1 seeking his eviction on the grounds available to them under the.”

(iv) L.N. Aswathama and another v. P. Prakash reported in (2009) 13 Supreme Court Cases 229, [LQ/SC/2009/944] paras 7 and 8, which reads thus:

“7.We find that the High Court did not formulate any points for consideration, nor examine the relevant issues or evidence. It reversed the well considered judgment of the trial court mainly on the ground that katha number of the suit property, given in two of the documents relied by the plaintiffs did not tally. It overlooked the fact that the trial court had recorded its findings based on other evidence, by excluding the said two documents from consideration. The High Court also ignored the explanation for the discrepancy, offered by the plaintiffs.

8.The first appellate court can re-appreciate evidence and record findings different from those recorded by the trial court. It is well settled that if the appraisal of evidence by the trial court suffers from material irregularity, as for example when its decision is based on mere conjectures and surmises, or when its decision relies upon inadmissible evidence or ignores material evidence or when it draws inferences and conclusions which do not naturally or logically flow from the proved facts, the appellate court is bound to interfere with the findings of the trial court. It is equally well settled that where the trial court has considered the entire evidence and recorded several material findings, the first appellate court would not reverse them on the basis of conjectures and surmises or without analyzing the relevant evidence in entirety. As the final court of facts, if the first appellate court is reversing the judgment of the trial court, it is bound to independently consider the entire evidence. The High Court has ignored these well settled principles. In these peculiar circumstances, we have to examine the correctness of the findings recorded by the High Court.”

(v) Bhagwanbhai Karamanbhai Bharvad v. Arogyanagar Co-Op. Housing Society Ltd. & Ors. reported in 2004 (1) GLR 44, para Nos.3, 7, 10 and 18, which read thus:

“3. The brief facts of the case are that the defendants No. 1 to 5 were original owners of the land bearing Survey No. 864 admeasuring 19602 sq. Mtrs. situated in the sim of village Vejalpur, District, Sub-District Ahmedabad and they decided to sell the said land and hence they executed "bankhai" (agreement to sell) in favour of the plaintiff -- the Arogyanagar Co-operative Housing Society Ltd. After receiving the entire consideration of Rs. 7,84.080=00 by cheque and in cash on 2-3-1993. On the same day, they executed other document i.e. a notorized supplementary agreement for possession in favour of the plaintiff society. Irrevocable Specific power of attorney was also executed by the defendants No. 1 to 5 in favour of one Jayantibhai C. Patel. They have also executed notorized indemnity bond and notorized "Sogadhnama" (affidavit). On behalf of the defendants No. 1 to 5 the power of attorney holder executed five separate sale deeds on 8-4-1999 in favour of the plaintiff-society. Those separate five sale deeds were produced before the Sub-Registrar, for registration on 17-7- 1999. As the plaintiff was not an agriculturist, permission for transfer of an agricultural land to a person not an agriculturist was required. The permission of transfer of the land in question Under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 was granted by the collector concerned on 24-7-1999. Therefore, aforesaid five sale deeds were registered on 3-8-1999 by the SubRegistrar and thereafter the mutation entries were also effected on 18-12-1999 in the record of rights i.e. village form No. 7-12 and other revenue records, and those entries were certified by Mamlatdar on 1-2-2000. It shows that the defendants No. 1, 3, 4 and 5 have also executed registered sale deeds on 26-12-1997 in favour of the defendants No.6 as well as notarized power of attorney in favour of Amrutbhai and notorized supplementary agreement for possession was also executed on the same day. The sale deeds were also executed by the defendants No. 1, 3, 4 and 5 in favour of the defendant No. 6 by the power of attorney holder on 24-5-1999. Mutation entries were also made on 31-5-1999 in the reeord of rights of village Vejalpur Panchayat. The Mamlatdar caneelled the mutation entry on 24-1-2000 against which an objection was raised and appeal was filed by one Bharwad against the order of the Mamlatadar. The Dy. Collector dismissed the appeal vide order dated 22-2-2001. Thereafter, Revision Application was filed by Bhagwanbhai Bharwad before the Gujarat Revenue Tribunal which was also rejected on 8-10- 2002, as per the statement of the learned counsel for the plaintiff. The Court Commissioner was appointed and his report dated 20-7-2001 shows that eonstruction of the Plaintiff on the disputed land.

7. From the above decision of the Apex Court with the object and reasons for making amendment made in Section 115 of the Code of Civil Procedure taking away the revisional powers of the High Court it is clear that this Court can exercise the powers of superintendence over all lower Courts and tribunals throughout its territory under Article 227 of the Constitution and can entertain the writ petition but that power and jurisdiction is circumscribed and has to be exercised more sparingly only appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not correcting mere errors. The High Court can enter into the question of facts or look evidence if it is required in the interest of justice, if there is misdirection in law or view of fact but the High Court should not interfere with finding of inferior tribunal except where the findings are perverse and not based on any material evidence or it has resulted in manifest injustice.

In the case of Ouseph Mathai v. M. Abdul Khadir, reported in 2002 (1) SCC 319 [LQ/SC/2001/2545] : (AIR 2002 SC 110 [LQ/SC/2001/2545] ) the Apex Court has accepted the decision of the Supreme Court in the case Waryan Singh v. Amarnath, reported in AIR 1954 SC 215 [LQ/SC/1954/7] , wherein it is held as under :

"The power of superintendence conferred by Article 227 is to be exercised more sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors."

However, the Supreme Court has also relied on other decisions and held that the High Court could not, in the guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the Legislature has not conferred a right of appeal. The objects and the reasons of the Legislature for omitting powers of High Court Under Section 115 of the C.P.C. and the decisions of the Apex Court as stated above, ultimately makes it abundantly clear that the High Court has ample power to exercise its jurisdiction under Article 227 of the Constitution to sparingly and in appropriate cases that depends upon facts and circumstances of each case. Thus, it cannot be said at this stage that there is total bar and the High Court cannot exercise its jurisdiction under Article 227 of the Constitution regarding the orders passed by the Trial Court or the appellate Court regarding interlocutory orders.

10. In connection with the execution of the sale deeds made in favour of the plaintiff society by the land owners through the power of attorney holder Jayantibhai C. Patel. Learned counsel for the petitioner contended that the defendant No. 2 has died when the sale deeds were executed and therefore the sale deeds executed by the defendants No. 1 to 5 through the power of attorney holder are illegal at least execution on behalf of the defendant No. 2 who had died and execution of the sale deeds on behalf of the defendant No. 2 made in favour of the plaintiff society is not acceptable, and cannot be deemed to be legal and valid as at the relevant time the defendant No. 2 was not alive for execution of the sale deeds and heirs and legal representatives of deceased defendant No. 2 have not consented at all for execution of the sale deeds on behalf of the defendant No. 2 and hence the sale deeds executed on behalf of the defendant No. 2 in absence of consent of the heirs and legal representative of the defendant No. 2 are illegal and are not sustain-able in the eye of law and in view of Section 201 of the Contract Act the power of attorney has come to an end and sought terminated at least in respect of the defendant No. 2. In this connection, learned counsel for the respondent-plaintiff society has pointed out that the irrevocable power of attorney has already been executed by the five land owners i.e. defendants No. 1 to 5 on 2-3- 1993. They have also parted with their power in favour of the power of attorney holder Jayantibhai C. Patel. As such, once the defendant No. 2 had no power, there would be no requirement of consent of the heirs and legal representatives of the defendant No. 2 for execution of the sale deeds by the power of attorney holder in favour of the plaintiff society. Considering the facts and circumstances of the case and material on record I am of the view that the defendant No. 2 though died there was no need for the power of attorney holder to obtain the consent from the heirs and legal representative of the defendant No. 2 as the presence or absence of the defendant No. 2 makes no difference in view of the fact that the defendant No. 2 had already parted his power for execution of the sale deed in favour of the power of attorney holder. As such, there is substance in the contention of the learned counsel for the petitioner.

18. I am in agreement with the contention of the learned counsel Mr. Mihir Thakor for the respondent that the agency would not be terminated Under Section 202 of the Contract Act even after death of the person who has, authorized, where there is no express contract. for termination, relied upon the decision of Division Bench of this Court in the case of Her Highness Shantadevi Pratapsinh Rao Gaekwad v. Sayjibhai H. Patel reported in 1998 (2) GLR 1521 [LQ/GujHC/1998/333] , wherein it is held as under :

"No doubt, in the case of Garapati Venkanna (sic) (supra), the Madras High Court had held that, where a power of attorney has been executed by several principals in favour of a person and one of the principals having distinguished interest in subject-matter of power of attorney dies, the death terminates the power of attorney. This view was taken by the Madras High Court because, the Court found that there was no authority coupled with an interest and, therefor, the argument raised on the basis of Section 202 of the Contract Act could not prevail. Here is a case in which we have already held as above that it was a case of an agency coupled with interest. In our opinion, the position of law with reference to Sec. 202 of the Contract Act is, therefore, very clear that the cases in which the agency is coupled with interest and there is no express contract for termination, there cannot be any termination even by death and, therefore, the factum of death of the principal during the pendency of the suit cannot lead to the termination of the agency. The necessary ingredients required under Section 202 of the Contract Act so as to hold that the agency could not be terminated in the facts of the present case are, therefore, clearly established and we also find that even the factum of death of the principal cannot bring about the termination of the agency."

(vi) Her Highness Maharani Shantadevi v. Savjibhai H. Patel and Others reported in 1998 (2) G.L.H. 70, paras Nos.14 to 19 which read as under :

“14. While in the case at hand, the POA did provide in Clause 13 that it was irrevocable and according to Clause 17 of the MOA, the agreement could not be unilaterally rescinded after the licensee of the second part has been put into possession of the property, on a critical analysis of the authorities as aforesaid, we find that there is no charm in the use of the word "irrevocable" and whether the contract could be rescinded and the authority could be revoked would largely depend upon the question as to whether the agency was coupled with the interest or not and as to whether such interest should essentially be preexisting, that is, independent of the agreement as such. Here is a case in which we find on the basis of the three documents that the main purpose for which the agency was created was the execution of the scheme for constructing dwelling units for weaker sections of the society. With that end in view, the plaintiff-respondent was to prepare the scheme and get it sanctioned in accordance with law. It is not the case in which there was any authority like that of conducting a case before the Court or a case of spiritual interest or an agency for exploiting the exhibition of a film. In cases of the agency coupled with the interest, we find that there is ample authority in support of the proposition of law that such interest need not essentially be a pre-existing interest or an interest independent of it. Interest has to be in the subject-matter of the agreement. Once it is found that the interest is created in the subject-matter of the agreement, may be by the agreement itself, it would still be a case of an agency coupled with interest, such interest may be created simultaneously and by the agreement itself and we also find that in such a case if the rescinding of the contract is held to be permissible, it would frustrate the very purpose for which the agreement was made, obviously, the plaintiff-respondent had an interest to see that the scheme is executed. Of course, the scheme could be executed only after it had been sanctioned in accordance with law. Nevertheless, the interest in the execution of the scheme subject to the condition as aforesaid, which was created by the agreement, does create a valuable interest in favour of the plaintiff-respondent and on the basis of the principles and on the basis of the ratio of the judicial pronouncements, it is clear that in the case at hand, an agency was created in which the plaintiff-respondent had an interest and, therefore, it could not be terminated to the prejudice of such interest in view of Section 202 of the Contract Act. The subject-matter of the agency in this case was the preparation and execution of the scheme under Section 21 of the Ceiling Act on the property of the defendant-appellant. May be that the plaintiff-respondent had no title to such property and he could not claim the ownership nor could he retain the land in question with him, but the matter of substance is that, a scheme after the statutory sanction was to be executed on this land through the plaintiff-respondent and this by itself was a valuable interest in this agency for the purpose of the subject-matter of the agency, that is the scheme itself. Thus, we have no hesitation in holding that it is a case of agency coupled with the interest.

15. The second requirement under Section 202 of the Contract Act against the termination of the agency is the absence of an express contract. In this regard, strong reliance has been placed by the learned Counsel for the defendant-appellant on Clause 17 of the MOA and an argument was raised that this Clause implies that the agreement could be unilaterally rescinded by either party at any time before the licensee of the second part had been put into possession and admittedly, the plaintiffrespondent had never been put into possession of the said property. Except Clause 17, we do not find any Clause in the MOA enabling the principal to rescind the agreement. The argument that Clause 17 impliedly authorises the principal to rescind the MOA, itself shows that there is absence of an express contract. Express contract would mean expressed by words in the terms of the agreement itself. It is the settled principle of law of Interpretation of Statute that, when the Statute itself uses a particular word, such word has to be given its full meaning in contradiction to its negative aspect. By using the word "express contract" the implied stands automatically excluded and, therefore, the authority to rescind the agreement cannot be by implication on the basis of Clause 17. Clause 17 certainly puts an express embargo against the rescinding of the agreement after the possession is handed over, but this embargo cannot be read to clothe the defendant-appellant with an express power to unilaterally rescind the agreement at any time before the possession is handed over and the same cannot be read as an express term of the contract for the purpose of terminating the agreement at any time prior to the possession. Although the learned Counsel for the plaintiff-respondent had argued that, apart from the fact that there was no express contract, this Clause does not even impliedly empower the original defendant-appellant to rescind the agreement at any time at his whim before the possession is handed over and that unless the scheme was sanctioned under Section 21 of the Ceiling Act, there was no question of handing over the possession and, therefore, this Clause 17 becomes operative only after the scheme is sanctioned and that upto the stage of obtaining the sanction, everything was to be done by the plaintiff-respondent and in fact, he by his efforts, had brought the scheme beyond the stage of approval by the specified authority and at this stage, the rescinding of the MOA could not be brought about by the defendant appellant so as to deny to the plaintiff-respondent the fruits of his labour, efforts and industriousness. It was pointedly argued on behalf of the plaintiff-respondent that even the implied authority to terminate the agreement on the basis of Clause 17 was not available because Clause 17 itself becomes operative after the handing over the possession and, therefore, at no stage, prior to the handing over of the possession of the property, the so-called implied authority on the basis of Clause 17 could be acted upon and given effect too. That may or may not be so, but the fact of the matter in the instant case is that, there is a total absence of an express term of contract. The learned Counsel for the defendant appellant cited the case of State of Rajasthan v. Raghubir Singh and Ors. reported in AIR 1979 SC 852 [LQ/SC/1979/93] . In this case, the Supreme Court was concerned only with a term of the agreement, i.e., neither the earnest money deposit nor the withheld amount shall bear any interest. The Supreme Court found that the provision of non-entitlement of the interest on the withheld amount implied that the interest was claimable on other amount. It was not a case with regard to the termination of the agency or the agreement itself. It was only a question of interpretation of one of the clauses relating to the claim under the agreement with regard to interest. Here is a case in which the rescinding of the contract itself is sought to be defended on the basis of an implied authority on the basis of one of the clauses of the agreement and therefore, this authority is of no avail to the plaintiff-appellant to show that there was any express contract for the purpose of termination of the agency. We thus find that the second requirement under Section 202 of the Contract Act, that is the absence of an express contract is clearly obtaining in the facts of this case.

16. Once we find that it was a case of agency coupled with the interest, and there is total absence of an express contract for the purpose of termination of the agency, the question arises as to what will be the effect of the death of the defendant-appellant and as to whether the agreement can be said to have come to an end or automatically terminated and authority stands revoked by the death of the principal during the pendency of the suit on 1-9-1988.

17. Under Clause 2 of the MOA, the plaintiff-respondent was appointed, constituted and nominated as the true and lawful attorney by the owner, that is the defendantappellant and on his behalf to do or cause to be done all acts required for the purpose of execution of the said scheme and in regard to the said property. This power of attorney was described to be irrevocable till the whole scheme is carried out. In the POA, after Clause 13 saying that the power of irrevocability till the scheme is finally carried out and executed as per the agreement dated 24th March 1977, the owner, i.e., the defendant-appellant mentioned that he for himself, his heirs, executors and administrators ratifies and confirms and agree to ratify and confirm whatsoever the said attorney or any substitute or substitutes acting under him shall do or purport to do or cause to be done by virtue of this presents. Firstly, by the very nature of the MOA read with POA and the ACD, we find that the parties had agreed for the execution of the scheme for the welfare of the members of the weaker sections. The scheme was required to have a statutory sanction and the carrying out of the scheme could not be intended to cease on account of the unfortunate death of the owner. It appears that no termination can be brought about even on account of the death as is clearly provided in the statutory illustrations given under Section 202 of the Contract Act. In Halsbury's Laws of England, 4th Edition, Vol. 1, at page 524 in para 872, it is mentioned as under: Powers of attorney: Where a power of attorney is expressed to be irrevocable and is given to secure a proprietary interest of the donee or the performance of an obligation owed to the donee, the power is irrevocable either by the donor without the consent of the donee or by the death, incapacity, bankruptcy, winding up or dissolution of the donor, so long as the donee has the interest or the obligation remains undischarged. A power of attorney given to secure a proprietary interest may be given to the person entitled to the interest and persons deriving title under him to that interest, and those persons will be the duly constituted donees of the power for all the purposes of the power, without prejudice to any right to appoint substitutes given by the power.

18. In Bowstead and Reynolds on "Agency", 16th Edition, at page Nos. 660-661, it has been mentioned that the authority expressed to be irrevocable is not determined by death etc. In Chitty on "Contract", 27th Edition, Vol. 2, page 94-95, the learned Author while dealing with the "Termination of Authority" has commented that, if there is an interest coupled with the authority, that is, if the agreement is entered into by Deed or on sufficient consideration, whereby an authority is given for the purpose of providing a security, such an authority is irrevocable even by death, etc.

19. No doubt, in the case of Garapati Venkanna (supra), the Madras High Court had held that, where a power of attorney has been executed by several principals in favour of a person and one of the principals having distinguished interest in subject-matter of power of attorney dies, the death terminates the power of attorney. This view was taken by the Madras High Court because, the Court found that there was no authority coupled with an interest and, therefore, the argument raised on the basis of Section 202 of the Contract Act could not prevail. Here is a case in which we have already held as above that it was a case of an agency coupled with interest. In our opinion, the position of law with reference to Section 202 of the Contract Act is, therefore, very clear that the cases in which the agency is coupled with interest and there is no express contract for termination, there cannot be any termination even by death and, therefore, the factum of death of the principal during the pendency of the suit cannot lead to the termination of the agency. The necessary ingredients required under Section 202 of the Contract Act so as to hold that the agency could not be terminated in the facts of the present case are, therefore, clearly established and we also find that even the factum of death of the principal cannot bring about the termination of the agency.

(vii) Timblo Irmaos Ltd., Margao v. Jorge Anibal Matos Sequeira and another reported in AIR 1977 Supreme Court 734 , paragraph 18, which reads as under :

“We were then referred to O.A.P.R.M.,A.R..Adaikappa Chettiar v. Thomas Cook & Son (Bankers) Ltd.,(1) where the well known principle of ejusdem generis was applied to hold that general words following words conferring specifically enumerated powers "cannot be construed so as to enlarge the restricted power there mentioned". In this case, the purpose of the general power was subordinated to the specif- ic powers given which determined the object of the power of attorney. There is no deviation in this case from the general rules of construction set out above by us. We have indicated above that implied powers cannot go beyond the scope of the general object of the power but must necessarily be subordinated to it. In fact, in a case like the one before us, where a general power of representation in' various business transactions is mentioned first and then specific instances of it are given, the converse rule, which is often specifically stated in statutory provisions (the rules of construction of statutes and documents being large- ly common), applies. That rule is that specific instances do not derrogate from the width of the .general power ini- tially conferred. To such a case the ejusdem generis rule cannot be applied. The mode of construing a document and the rules to be applied to extract its meaning correctly depend upon not only upon the nature and object but also upon the frame, provisions, and language of the document. In cases of uncertainty, the rule embodied in proviso 2 to Section 92 of the Evidence Act, which is applicable to contracts, can be invoked. Thus, the ultimate decision, on such a matter, turns upon the particular and peculiar facts of each case.”

(viii) Prema Sudhamani vs. D. Krishna Rao reported in O.S.A. No.189 of 2007, paras 6, 7, 8 and 11, which read as under :

“6.It is brought to the notice of this Court that one of the persons who executed the General Power of Attorney dated 09.05.2005 has expired and therefore, the said power is not binding. At this stage, the learned counsel for the appellants urges that as per Section 201 of the Contract Act on the death or insanity of the (sole) principal the agency terminates automatically and further that as a rule, the authority of the agent is revoked by the death of the principal and the agency comes to an end and any attempted execution of the authority after that event is not binding. Added further, the learned counsel for the appellants also cites the decision Garapati Venkanna V. Mullapudi Atchutaramanna and others AIR 1938 Madras 542 wherein it is laid down as follows:

"Where a power of attorney has been executed by several principals in favour of a person, and one of the principals having distinct interest in subject matter of the power of attorney dies, the death terminates the power of attorney."

7.Per contra, the learned counsel for the respondents submits that if there are two or more principals and they are joint and several, and if one of them dies, the agency terminates only in regard to the representatives of the deceased principal, but it continues as regards the surviving principal and in support of his contention, he places reliance on the decision Monindra Lal Chatterjee V. Hari Pada Ghose and others AIR 1936 Calcutta 650 wherein it is inter alia held that 'on death one agency terminates only as regards representative of deceased principal but continues as regards surviving principal and that surviving principal may sue for rendition of accounts within three years of termination of agency as against him.'

8.He also cites the decision M.Ponnusami Pillai and another V. Chidambaram Pillai and others Vol.35 M.L.J. 294 wherein it is held that 'A power of attorney given to an agent by two members of a joint Hindu trading family is not terminated by the death of one of the members.'

xxx xxx xxx xxx xxx

11.By applying the enunciated legal principles to the General Power of Attorney dated 09.05.2005, in the matter in issue, we opine that the said power deed does not get terminated by virtue of death of one of the executants.”

(ix) Monindra Lal Chatterjee V. Hari Pada Ghose and others reported AIR 1936 Calcutta 650, paras 7, 8 and 9, which read as under:

7. Cases, however, where two or more persons appoint an agent by the same act or instrument, and where only one of such principals dies, present difficulties. These cases cannot be answered simply by the terms of Section 201, Contract Act. The principle that the death of the principal terminates the agency as embodied in Section 201, Contract Act, is a principle taken from the English law. In England, however, cases where the appointment of an agent had been made by a firm have presented difficulties when one member of the firm subsequently died. It has been held that death of one of the partners does not ipso facto terminate the agency, but the scope of the agency and the business for which the agent was employed are material factors: Taskar v. Shepperd (1858) 6 H & N 575 and Phillips v. Hull Alhambra Palace Co. (1901) 1 K B 59. In Re Sital Prosad 1917 Cal 436, a case which has been followed by the Madras High Court in Ponnusami Pillai v. Chidambaram Chettiar 1918 Mad 279, Mookherjee, J. examined the position in detail and laid down the law in these terms:

We cannot consequently hold as an inflexible rule of law that whenever two principals appoint an agent to take charge of some matter in which they are jointly interested, the death of one terminates the authority of the agent not merely as regards the deceased, but also as regards the remaining principal. We have in each case to determine the true intention of the parties to the contract, from the terms thereof and from the surrounding circumstances.

8. In that case, as also in Ponnusami Pillai v. Chidambaram Chettiar 1918 Mad 279, members of a joint Mitakshara family had appointed one of them as agent for a certain purpose. It was held that the death of one of the members who had appointed their coparcener as agent, did not affect the agency at all, the agency continued not only under the surviving coparceners who had concurred in the appointment, but also under all the coparceners including sons and descendants of the deceased coparcener. This view that the agency continued, so to say, under the joint family as before, may be due to the special facts of those cases and to the peculiar position of a joint Mitakshara family. That fact may account for the continuance of the agency not only under the survivors, but also under the descendants of the deceased principal, but I do not see why in other cases the agency should not continue under the surviving principals only in the absence of any evidence that all the principals were, as Mookerjee, J. points out, in Re Sital Prosad 1917 Cal 436, and to use his convenient expression, "joint principals" and not "joint and several principals" and "the power given to the agent is not joint and several." It may terminate so far as the representative of the deceased principal is concerned and to that extent only. This accords with the view taken in M adhusudan Sen v. Rakhal Chandra 1916 Cal 680, a case which I have already noticed. The power of attorney which Rakhal Das Sarcar as guardian of his wards executed in favour of the defendant has not been produced. The defendant's statement that he never saw it and never knew of its terms does not seem to me to be either convincing or truthful. If he wants to maintain the position that the death of Guru Pada terminated his agency under Hari Pada also, it was incumbent on him to prove from the terms of the power of attorney, either by producing the power of attorney or from secondary evidence, that Guru Pada and Hari Pada were "joint principals" and not "joint and several principals" in the words of Mookerjee, J. Section 109, Evidence Act, in my judgment, places the the burden of proof on him.

9. I accordingly hold that on the death Of Guru Pada the defendant continued to be the agent under Hari Pada. The same agency continued and Hari Pada can by invoking Article 89, Limitation Act, get accounts from him from 1313 to 1337. On Guru Pada's death, however, the old agency under him terminated and a new agency under Guru Pada's son, namely, under plaintiff 2, sprang up. Plaintiff 2 was bound to sue for accounts of his father's time within three years of his father's death which occurred in February 1929. If he had not been a minor at his father's death and at the date of this suit his claim from 1313 to Magh 1335 (February 1929) would have been barred by time, but his minority has saved his claim for this period. Section 6, Limitation Act, covers the case and there is no need for him to invoke Section 7 at all. I accordingly overrule this point also. The result is that this appeal is dismissed with costs.

(x) Rajendra Lalitkumar Agrawal vs. Ratna Ashok Muranjan and another reported in (2019) 3 SCC 378, [LQ/SC/2019/169] paras 10 and 11 read as under:

10. It cannot be disputed that the interpretation of any terms and conditions of a document (such as the agreement dated 08.08.1984 in this case) constitutes a substantial question of law within the meaning of Section 100 of the Code. It is more so when both the parties admit the document.

11. As mentioned above, since the interpretation of documents constitutes the substantial question of law, the High Court should have first framed appropriate substantial question(s) arising in the case especially on the questions in relation to the true intent, rights and obligations arising from Clauses 3, 5 and 15 of the agreement dated 08.08.1984 in the context of pleadings and the reversing findings of the two Courts below and then should have called upon the respondents to reply to the questions framed keeping in view its jurisdiction under Section 100(5) of the Code and its proviso.

13.1 Learned Senior Counsel Shri Shelat has also relied upon following decisions, which are on similar line of propositions of law, which are referred to hereinabove:

(i) Rajendra Lalitkumar Agrawal vs. Ratna Ashok Muranjan reported in (2019) 3 Supreme Court Cases 378 [LQ/SC/2019/169] .

(ii) Arvindbhai Dhanjibhai Jobanputra Versus Vijaykumar Gaurishankar Thakkar reported in LAWS (GJH)- 2013-1-82.

(iii) Lisamma Antony and Ors. vs. Karthiyayani and Ors. reported in Manu/SC/0321/2015.

(iv) Jalaram Developers, Through Partner Bhikhabhai Virajbhai v. Nilaben Mahendrakumar Vaidya and Ors. reported in 2010 (1) G.L.H. 354.

(v) Ravula Subba Rao and others vs. Commr. of Income Tax, Madras reported in 1956 Supreme Court 604.

14. Learned Senior Counsel Shri Yatin Oza for the plaintiff has vehemently submitted that the question relating to the Power of Attorney is a question of facts and not a legal question. He has submitted that in relation to the concerned Power of Attorney and it has been held by both the Courts below against the defendants and thus, there is a concurrent finding of facts by both the courts below and therefore, in a Second Appeal, this Court may not interfere with the concurrent findings of facts by both the Courts below.

14.1 He has submitted that the entire defence of the defendants-appellants is on the Power of Attorney and therefore, since there is a concurrent findings of facts, there is no substantial questions of law involved in this appeal. He has submitted that though the questions have been framed earlier in this matter, on the facts of the case, no such questions needs to be decided and if needs to be decided it against the defendants – appellants.

14.2 He has submitted that whether the Power of Attorney was executed with interest or not is a question of fact, which has been decided by both the Courts below concurrently against the defendants and therefore, this Court may not interfere with these observations. He has also submitted that mere of use of word “interest” in a Power of Attorney does not create any interest in the property. He has submitted that the entire Power of Attorney needs to be read as a whole. It was only given for the administrative management of the property without any interest of the property. He has also referred to the suit filed by the defendants and has submitted that in the said suit, the defendants – appellants did not refer to the point of creation of any interest in his favour by virtue of such Power of Attorney. He has also submitted that in the earlier suit injunction application of the defendants herein came to be dismissed and one of the author of the Power of Attorney had died, the Power of Attorney automatically come to an end. He has submitted that both the Courts below have properly appreciated the facts and circumstances of the present case and have rightly passed the impugned judgment and decree, which does not call for the interference in this Second Appeal. He has prayed to dismiss the Second Appeal.

14.3 Learned Senior Counsel Shri Yatin Oza for the plaintiff while referring to the oral and documentary evidence as well as the Power of Attorney and the statements made on behalf of the Counsel for the defendants – appellants, has vehemently submitted that in the present case there was no any interest created in favour of the defendants by virtue of such Power of Attorney. He has submitted that there must be some other documents in addition to the Power of Attorney to substantiate the version of the defendants that interest in the property was created by the plaintiff. He has submitted that when the defendants – appellants herein has filed the previous suit, he had a knowledge that the Power of Attorney has already been cancelled otherwise there was no need for him to rush to the Court for prayer of injunction against the plaintiff herein restraining him from exercising his power vested by virtue of the Power of Attorney.

14.4 Learned Senior Counsel has also submitted that though the said suit has been withdrawn it does not wipe out the pleadings in the said suit. He has submitted the the principles of estoppel would apply to the defendants – appellants herein due to his previous pleadings in the previous suits, wherein he has not uttered any words regarding creation of interest in his favour by virtue of such Power of Attorney. He has also submitted that there was no any averments of payment of Rs. 61,000/- made in the previous suit. He has submitted that the previous suit was filed by the appellants herein on the basis of the Power of Attorney and in the second Suit his defence is also based upon the same Power of Attorney. He has also, while referring to Power of Attorney, vehemently submitted that there is no averments that the same is irrevocable and there is no any authority given to the defendant No.1 for sale of the land in question. While referring to Section 210 of the Contract Act, he has also submitted that it is an absolute right of the guarantor to cancel the Power of Attorney. Regarding applicability of Section 202 of the Contract Act, he has vehemently submitted that it will only apply when interest is created in the agency. Learned Senior Counsel Shri Oza has also submitted that in the present case there is no case of creation of any agency with interest in favour of the defendants-appellants by the original plaintiff.

14.5 Learned Senior Counsel Shri Oza has also vehemently submitted that the defendants have not produced any evidence regarding payment of Rs.61,000/- or Rs.63,100/- to the plaintiff. He has also submitted that examination of witnesses by the defendants for such payment has no relevance as the defendants – appellants themselves has admitted in their evidence that they have no documents or evidence as to the payment of consideration to the plaintiff. Learned Senior Counsel Shri Oza has vehemently submitted that the Power of Attorney needs to be read as a whole and on doing so, it does not reflect that any power was given to the defendant No.1 for sale of the property or any interest was created in his favour. He has also submitted that the sale by the defendant No.1 by virtue of the Power of Attorney to defendant No.2 who is his own son, speaks itself that the entire transactions between the father and son is not a bona fide one, but merely to defeat the right of the plaintiffs pertaining to the land in question.He has further submitted that since one of the grantor of the Power of Attorney has died, the Power of Attorney does not remain in existence. Learned Senior Counsel Shri Oza has also vehemently submitted that there is no need of any issuance of Public Notice for cancellation of Power of Attorney as the grantor can at anytime cancel it and inform the grantee thereof. He has stated that in the present case, both the Courts below have properly considered the oral and documentary evidence in its true prospective and have not committed any error of facts and law in passing decree in favour of the plaintiff. He has submitted that the present appeal is devoid of the merits and be dismissed with costs.

14.6 Regarding the various decisions relied upon by Senior Counsel Shri Shelat for the appellants – defendants, learned Counsel Shri Oza has submitted that the facts therein are different from the facts of the present case and therefore, those decisions are not applicable to the facts of the present case.

14.7 Learned Counsel Shri Oza has relied upon following decisions for his submission to dismiss the appeal:

(i) Church of Christ Charitable Trust v. Ponniamman Educational Trust Represented by its Chairperson/Managing Trustee reported in 2012 (8) SCC 706, [LQ/SC/2012/534] paragraph 19 to 21, which read thus :

Power of Attorney:

19) Next, we have to consider the power of attorney. It is settled that a power of attorney has to be strictly construed. In order to agree to sell or effect a sale by a power of attorney, the power should also expressly authorize the power to agent to execute the sale agreement/sale deed i.e., (a) to present the document before the Registrar; and (b) to admit execution of the document before the Registrar. A perusal of the power of attorney, in the present case, only authorizes certain specified acts but not any act authorizing entering into an agreement of sale or to execute sale deed or admit execution before the Registrar.

20. In a recent decision of this Court in Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana and Another (2012) 1 SCC 656, [LQ/SC/2011/1337] the scope of power of attorney has been explained in the following words:

“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.

21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77 [LQ/SC/2005/898] . this Court held: (SCC pp. 90 & 101, paras 13 & 52)

“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.

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.”

An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.”

21. It is clear that from the date the power of attorney is executed by the principal in favour of the agent and by virtue of the terms the agent derives a right to use his name and all acts, deeds and things done by him are subject to the limitations contained in the said deed. It is further clear that the power of attorney holder executed a deed of conveyance in exercise of the power granted under it and conveys title on behalf of the grantor.

(ii) Mahesh Govindji Trivedi v. Legal heirs of Bhagvanji Govindji Trivedi & 5 Ors reported in (2014) 2 GLR 1482 [LQ/GujHC/2013/1516] , paragraph 18, whcih reads thus:

“19. It would appear from the above that if the interest in favour of the donee is created in the deed of power of attorney or if such interest is passed on in favour of donee, then such deed becomes irrevocable and even the death of donor would have no vitiating effect or consequence on the deed. It may also be noted that creation of such interest need not necessarily be in the deed of power of attorney itself and expression of such creation of interest or recognition of interest by the donor may be in the form of separate deed in this regard. In the other words, donor may have expressed his/her intention of conferring or creating interest upon the donee by executing separate simultaneous deed. What is important and determinative is the intention of the donor, and secondly expression of such intention should be either in the deed of power of attorney itself or in another deed executed simultaneously. It is for the party who asserts the deed to be irrevocable to show and establish that it is not revocable in its nature. The burden would be heavier on the party to explain when such interest is not transferred or created specifically in the said deed and/or when it is not simultaneously conferred or created. In the present case, it would appear that the donor had executed power of attorney in favour of donee (deft.no.1) mainly because the donor herself cannot remain present for execution of transaction in respect of her property and Trusts property. In the deed (exh.97), the donor has not even remotely expressed an intention to create or transfer any interest in favour of the donee. In absence of creation or transfer of interest in the property, it cannot be said that donor intended to execute irrevocable power of attorney. Although the deed in the heading is referred as irrevocable power of attorney, mere referring and labeling as irrevocable would not make the deed irrevocable. Reading of the deed (Exh.97) leaves no doubt that it is not irrevocable.”

(iii) Gurnam Singh (D) by Lrs. & Ors. v. Lehna Singh in Civil Appeal No. 6567 of 2014 (decisions of Hon’ble Apex Court) paragraph 13.1 and 18, which read thus :

“13.1. The suspicious circumstances which were considered by the learned Trial Court are narrated/stated hereinabove. On reappreciation of evidence on record and after dealing with each alleged suspicious circumstances, which were dealt with by the learned Trial Court, the First Appellate Court by giving cogent reasons held the Will genuine and consequently did not agree with the findings recorded by the learned Trial Court. However, in Second Appeal under Section 100 of the CPC, the High Court, by impugned judgment and order has interfered with the Judgment and Decree passed by the First Appellate Court. While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law;

OR

(ii) Contrary to the law as pronounced by the Apex Court;

OR

(iii) Based on inadmissible evidence or no evidence.

18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, [LQ/SC/2009/335] despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.

Therefore, we are constrained to observe as above and remind the High Courts the limitations under Section 100 of the CPC and again hope that High Courts would keep in mind the legal position before interfering in Second Appeal under Section 100 of the Code of Civil Procedure.”

(iv) Mallanaguoda and Ors. v. Ninganagouda and Ors in Civil Appeal No. 805 of 2021 (decisions of Hon’ble Apex Court), paragraph 10, which reads thus:

“10. The First Appellate Court is the final Court on facts. It has been repeatedly held by this Court that the judgment of the First Appellate Court should not be interfered with by the High Court in exercise of its jurisdiction under Section 100 CPC, unless there is a substantial question of law. The High Court committed an error in setting aside the judgment of the First Appellate Court and finding fault with the final decree by taking a different view on factual findings recorded by the First Appellate Court. That apart, the High Court did not give any reason to substantiate the finding that the land in Block No.5 has non-agricultural potentiality, especially when the First Appellate Court refused to accept the said contention by rejecting the application filed under Order 41 Rule 27 by the Respondents. In the normal course, we would have set aside the judgment of the High Court and remanded the matter back for fresh consideration. However, taking into account the fact that the preliminary decree was passed way back in 2002 and the Appellants have not been able to enjoy the fruits of the decree, we have examined the correctness of the judgment of the First Appellate Court.”

(v) Manubhai Chhotabhai Patel v. Manubhai Motibhai Patel-died-through his heirs and L.R. in Civil Application No. 2 of 2019 in Second Appeal No. 202 of 2015 (decisions of Hon’ble Apex Court). In the present case, the said IA Judgment came to be confirmed by the Hon’ble Apex Court in Special Leave to Appeal No. 14367 of 2019 dated 08.07.2019.

(vi) Kalyan Singh Chouhand v. C.P. Joshi reported in A.I.R. 2011 SC 1127 [LQ/SC/2011/133] .

(vii) Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs. and Ors. reported in A.I.R. 2008 SC 2033 [LQ/SC/2008/747] .

15. Learned Senior Counsel Shri Sanjanwala for the respondent No.2 has submitted that considering the facts of the case there is no substantial questions of law is involved. He has submitted that the questions raised by the appellant relating to the Power of Attorney are questions of facts. He has submitted that in the present case, the alleged Power of Attorney was not having created any interest in favour of the appellant. He has submitted that by mere use of word “interest” that fact does not itself create any interest in favour of the Power of Attorney. While referring to the Power of Attorney at Exh. 18, learned Senior Counsel Shri Sanjanwala has submitted that it was only for the purpose of administration of land and there was no creation of any interest in favour of the plaintiff.

15.1 Shri Sanjanwala has also submitted that even in the previous suit, the appellant has not claimed any creation of interest in property by virtue of alleged creation of interest. He has submitted that the impugned order passed by both the Courts below was proper and there is concurrent findings of facts since substantial questions of law is involved in the Second Appeal, the Second Appeal may kindly be dismissed with costs.

16. In Rejoinder, learned Senior Counsel Shri Shelat for the defendants-appellants has vehemently submitted that the decisions cited by the otherside is not applicable to the present case. He further relied upon the decision of the Apex Court in the case of Timblo Irmaos Ltd. (supra) and has prayed to allow the present appeal by setting aside the judgments and decrees of the both the Courts below.

17. Having considered the submissions made on behalf of the both the sides coupled with the evidence as well as the impugned judgment of both the Courts below as well as the pleadings and oral and documentary evidence on record and the various decisions cited at bar, it emerges that the entire question devolves upon the interpretation of the Power of Attorney. It is an admitted facts that the land in question originally belongs to one Motibhai Hirabhai and after his death it was of the plaintiff and his mother Chanchalben. There is also no dispute regarding the execution of Power of Attorney on 29.03.1989 by plaintiff and his mother in favour of the defendant No.1. It is also undisputed facts that Chanchalben has died.

18. It is also an admitted facts that prior to filing of the present Special Civil Suit No.31 of 1999 by the plaintiffs, the defendants – appellants herein has instituted previous suit in year 1996 against the plaintiffs of the present suit on the basis of the said Power of Attorney.

19. It is well settled principles of the interpretation that process of interpretation is process of providing meaning of words and their effectiveness as medium to communicate a particular thoughts. It is by the process of interpretation that the Court interpret any statute or any given documents. It is well settled that in a process of interpretation the entire documents needs to be read as a whole. There cannot be any piece-meal interpretation of averment made in the documents or statute. The intention of the maker of the documents is to be gathered by reading the documents as a whole. If there is conflicting clauses in document or statute, then it has to be read harmoniously to avoid the situation whereby any of the provision becomes otios. The various rules of interpretation are guidelines for interpretation of statute and that of documents. Those rules do not override language of document, where the language is clear. They are only lights to enable the judges to understand what the statute is. It is compendious Rules of interpretation can only be regarded as mere to interpretation guides and ought to be applied as if there was statutory process enacted with all decisions on proviso of the legislation. The Court should invoke whichever of the rules produce a result that satisfy it sense of justice to approach before it.

20. Learned Senior advocate Shri Shelat has also relied upon Section 3 of the Power of Attorney Act, 1882. Section 3 of theprovides as under:

“3. Payment by attorney under power, without notice of death, etc., good.—Any person making or doing any payment or act in good faith, in pursuance of a power-ofattorney, shall not be liable in respect of the payment or act by reason that, before the payment or act, the donor of the power had died or become 4 [***] of unsound mind, 4 [***] or insolvent, or had revoked the power, if the fact of death 4 [***] unsoundness of mind, 4 [***] insolvency or revocation was not, at the time of the payment or act, known to the person making or doing the same. But this section shall not affect any right against the payee of any person interested in any money so paid; and that person shall have the like remedy against the payee as he would have had against the payer, if the payment had not been made by him. This section applies only to payments and acts made or done after this Act comes into force.”

The section provides for protection of the payee. It did not apply when the Power of Attorney holder exceed its limit as per the power granted to him by the instrument. Admittedly, in the present case though the Notice has been issued to the wrong address to the appellants by the plaintiff, in view of the suit filed by the appellants on the basis of the Power of Attorney clearly suggests that he has knowledge of cancellation of the Power of Attorney by the plaintiff. Therefore, recourse to Section 3 is not available to the appellants herein.

21. In view of the decisions rendered in the case of Suraj Lamp and Industries Private Limited ( vs. State of Haryana & Anr., AIR 2012 SC 206 [LQ/SC/2011/1337] , the scope of Power of Attorney has been explained, wherein para 20 reads as under:

“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. In view of the aforesaid pronouncements it clearly transpires in the present case also that the Power of Attorney, which was granted in favour of the defendant No.1-Appellant, herein was not coupled with the interest and therefore, the grantor was well within his power to cancel it at any point of time. Admitted in this case, the defendants had knowledge regarding cancellation of such Power of Attorney by the plaintiff as he himself has filed suit for carrying out activity on the basis of alleged Power of Attorney.

23. Considering the Rules of interpretation, if we consider the Power of Attorney at Exh.18, it clearly transpires that it was executed by Manubhai and Chanchalben Motibhai on 29.03.1989. It is a general Power of Attorney. On perusal of it, it appears that the general Power has been given to the defendant No.1 to do the general work related to the land in question, which includes to file any applications before any Civil, Criminal or Revenue Authority, Appellate Court and to sign documents in a registration office, Panchayat office or any other office on behalf of the grantors. There is also recital that the grantee was entitled to issue necessary receipt of amount on behalf of the grantor. It also reveals from it that the general Power given to the grantee to do all works before any authority on behalf of the grantor. However, there is no any averments reflecting the right of the selling of the property given to the grantee by the grantor. Of course, in the last three lines only at one point the word “interest” is use, but there is no averments that it is a irrevocable Power of Attorney. On appreciating the entire Power of Attorney, it clearly reflects that there was no creation of any sort of interest in favour of the grantee by the grantor. This is a general Power of Attorney given to the defendant No.1. Further, it clearly appears that both the Courts below have properly considered the Power of Attorney. Thus, the Courts below have not committed any error of facts and law in interpreting the alleged power of attorney. Even there is no recital in the said Power of Attorney that any consideration has been paid by the grantee to the grantor. Under this circumstances, since the Power of Attorney was not coupled with any interest, the death of one executor will not entitle the grantee to act on her behalf. Moreover, this being the general Power of Attorney, the grantor can at any point of time, cancel it.At this juncture, it is also pertinent to note that there is no dispute regarding filing of the suit by the appellants against the plaintiff of this matter on the basis of this very Power of Attorney and the same has not been controverted by the defendants. It reflects that though the cancellation of Power of Attorney was sent by the plaintiff to the defendants on wrong address, defendants – appellants had knowledge of such notice as by filing Civil Appeal No.125 of 1996 he has challenged the action of the plaintiff herein in disturbing him from acting upon the Power of Attorney. This action on the part of the defendants – appellants clearly suggests that he has a knowledge of the cancellation of the Power of Attorney by the plaintiff herein.

24. Learned Senior Counsel Shri Shelat has also relied upon Section 202 of the Contract Act for his proposition that plaintiff had no authority to cancel the Power of Attorney as it was coupled with the interest in favour of the appellant. Section 202 of the Contract Act provides as under:

202. Termination of agency, where agent has an interest in subject-matter.—Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. —Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest." Illustrations (a) A gives authority to B to sell A’s land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death. (a) A gives authority to B to sell A’s land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death."

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death. (b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."

24.1 For applicability of Section 202 of the Contract Act, there must be an agency created between the parties. Of course, by executing a Power of Attorney by one person in favour of the other, the relationship between them would be like a principal and an agent. In such eventuality, the power of the agent would be subject to this instrument of agency created between the parties. Now, as observed hereinabove, on constructions of the Power of Attorney it is clearly reveals that it was a general Power of Attorney without any interest created in favour of the appellant herein. Since there was no interest created in the property specifically in the alleged Power of Attorney documents, the grantor had every authority to cancel it at any point of time. There was no restrictive recital in the Power of Attorney restricting the rights of the grantor against cancellation of the said Power of Attorney. It was not irrevocable Power of Attorney but it is a simple, general Power of Attorney giving the authority to the appellants to act on behalf of the plaintiff for the certain purposes relating the property in question without any interest in favour of the grantee. Therefore, Section 202, which has been relied upon by the learned Senior Counsel Shri Shelat has no bearing upon the alleged power of attorney.

25. It also reveals from the record that it is the case of the defendants that he has paid an amount of consideration of Rs. 63,100/- to the plaintiff and for this purpose he has examined witness. On perusal of his own oral and documentary evidence, it clearly transpires that he has admitted that he has no any documentary evidence to support factum of the consideration paid to the plaintiff. At this juncture, it is pertinent to note that so far as the factum of payment of consideration to the plaintiff is concerned, it is the questions of facts, which are concurrently decided by both the Courts below against the defendants are in favour of the plaintiff.

26. Therefore, this being the Second Appeal as the Second Appellate Court - this Court cannot interfere with the such concurrent findings of facts which are based upon proper appreciation of oral and documentary evidence.

27. Considering the facts and circumstances of the case, it is clearly found that there is no question of any applicability of Power of Attorney as irrevocable and the defendants had agreed to act upon it against the interest of the plaintiff. On perusal of the entire pleadings as well as oral and documentary evidence placed before the learned Trial Court and the judgment and decree of the both the Courts below, it clearly transpires that both the Courts below have properly appreciated the evidence on record and has properly interpreted the Power of Attorney and have not committed any error in facts and law in passing judgment and decree in favour of the plaintiff and against the present appellants – defendants. Under the facts and circumstances of the case, therefore, I have decided all the points in negative accordingly.

28. In view of the above, the present appeal deserves to be dismissed and resultantely, I pass the following order in the interest of justice:

ORDER

(i) The present appeal stands dismissed.

(ii) Considering the facts and circumstances of the case, parties are directed to bear their respective costs of the present appeal.

(iii) Decree to be drawn accordingly.

(iv) Alongwith the copy of this judgment and decree, R & P be sent back to the Trial Court.