right of Agent over principal after revocation of GPA

509 votes

Agent has no right to retain any thing belonging to his Principal once the relationship is terminated. It is governed by law of agency. Agent can recover any dues from Principal. Further, Agent cannot hold back the property of his Principal merely because he was once put in possession. In turn Principal can file case against Agent for illegally occupying the property.

Advocate Jagadish Sidramappa Halashetti LawRato

792 votes

ntroduction
This paper critically analyzes the legal provisions and case laws pertaining to revocation of a power of attorney. revocation of power of attorney. It aims at finding out what are the conditions that decide whether a power of attorney is revocable or irrevocable.

Revocation of power is as important as delegation of power itself otherwise it might be to the prejudice of the parties themselves. In deciding whether the agency can be revoked or not two conflicting interests are to be reconciled and a suitable middle way is to be formed so that none of the parties suffer unjustly. The interest of the one who has delegated power is in conflict with that to whom the power is given.

But before we start our search for an answer to the problem that we have chosen it is mandatory to have a brief idea about the fundamentals of a power of attorney.

Defining A Power Of Attorney
Power of Attorney is a document of agency whereby the principal appoints an agent to do and execute certain acts or deeds on his behalf. Various can be found in different enactments like according to the Bombay Stamp Act it is defined as "any instrument empowering a person to act for and in the name of the person executing it and includes an instrument by which a person a not being a legal practitioner is authorized to appear on behalf of any party in proceedings before any court tribunal or authority"

The Indian Stamps Act defines it "any instrument empowering any specified person to act for and in the name of the person executing it"

Though there is a specific act pertaining to Power of attorney but it is a very precise and brief one , the basic principles of these document are governed by the law of agency as provided for in the Indian Contract Act. A power of attorney may be of two types-
1) General 2) Specific-
The test to determine under which category a given document falls is as to what is the subject matter in respect of which power is given and if it is restricted to some specific matter it is specific else it is general.

Construction of a power of attorney- There are two main rules in construing a power of attorney
.1) The operative part of the deed is controlled by the recitals wherever there is any ambiguity
2) Where authority is given to do particular acts followed by general words the general words are restricted to what is necessary for the performance of the particular acts

Situations Where Law Permits Revocation Of Power Of Attorney- A Case Study Approach
The statutes are silent as to when a power of attorney can be revoked and therefore we have to rpely on case laws to determine in what circumstances a power of attorney be revoked.

Therefore in the following pages various cases decided by the Hon'ble Supreme Court and High Courts of various states have been analyzed to determine what is the test laid down to decide whether a power of attorney can be revoked or not. After this case analysis only we would be a position to arrive at an answer to this issue regarding revocation of power of attorney.

Observations On The Basis Of Case Analysis
After discussing the view of the courts on the question of revocability of power of attorney which is unanimously same irrespective of the court or the judge we are now in a position to summaries the basic premise and the legal principle that is involved in this concept. Following common conclusions can be derived from all these cases-
# If the power given to the attorney is coupled with an interest it is irrevocable
# To decide whether a given power is coupled with interest or not regards are to be given to the facts of each case and the wordings of the instrument itself.
# The following have been considered to be 'power coupled with interest' in the above discussed cases.
# The right of an agent to remuneration though stipulated in the form of property to be produced by exercise of power is not an interest in the required sense.
# If the power is irrevocable as per the test laid down the parties are nevertheless free to make it revocable by an express stipulation to the contrary.
# If the power is revocable than the parties cannot make it irrevocable merely by writing that the instrument is irrevocable.
# The position in our country is the same as that in England.
# A power of attorney is automatically terminated if- One of the parties to the instrument dies or becomes insane, The principal becomes insolvent or bankrupt, any specific condition in the instrument is breached, the business comes to an end.
" Courts refer to Indian Contract Act provisions to determine this question

Conclusion
The conclusion that can be arrived at the end of the paper is that the position with regard to the revocability of power of attorney is well settled in our country. The test laid down here seems to be a well-established principle in common law as various English jurist have also expressed the similar opinion on this point. Not only this the test laid down also seems to be very just and fair. None of the parties are wrongly prejudiced if the test is applied objectively. Such well- settled principles lend certainty to business transactions and day to affair. Now since the position is so well settled the masses on an advice from their legal advisors shall know in an instant how to frame their instrument in such a manner and the objectives ( whatever they may be behind creating a power of attorney) are attained and they do not suffer later on account of uncertainty in law.

Advocate Srinivasa Kudva LawRato