SUPREME COURT ON
THE STAMP ACT SECTIONS 5&6
THE MEMBER, BOARD OF REVENUE Versus ARTHUR PAUL BENTHALL
PETITIONER:
THE MEMBER, BOARD OF REVENUE
Vs.
RESPONDENT:
ARTHUR PAUL BENTHALL.
DATE OF JUDGEMENT:
04/10/1955
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
AIYAR, N. CHANDRASEKHARA
DAS, SUDHI RANJAN
BHAGWATI, NATWARLAL H.
IMAM, SYED JAFFER
CITATION:
1956 AIR 35 1955 SCR
(2) 842
ACT:
The Indian Stamp Act
(II of 1899), ss. 5 and 6-Expression
"distinct matters" in s. 5 and "description"
in s. 6-Whether
have different
connotations-Instrument in
question-Whether
comprised distinct matters.
HEADNOTE:
Held per S. R. DAS,
ACTING C. J., VENKATARAMA AYYAR, JAFER
IMAM and
CHANDRASEKHARA AIYAR JJ. (BHAGWATI J.
dissenting)
the contention that the word "matter" in s. 5 of
the Indian
Stamp Act was intended to convey the same meaning as
the
word "description" in s. 6 is without force. In its popular
sense, the expression
"distinct matters" would
connote
something different from
distinct "categories". Two
transactions might be
of the same description, but all the
same, they might be distinct.
When two words of different import are used in a
statute in
two consecutive provisions, it cannot be maintained that
they are used in the same sense and therefore the expression
"distinct
matters" in s. 5 and "description" in s. 6 have
different connotations.
It is settled law that when two persons join in
executing a
power of attorney, whether it comprises distinct matters or
not will depend on
whether the interests of the executants
in the subject matter of the power are separate
or not.
Conversely, if one
person holding properties
in two
different capacities, each
unconnected with the
other,
executes a power in respect of both of them, the instrument
should logically be
held to comprise distinct
matters.
Held, that the instrument in question, Exhibit A,-the power
of attorney-comprised distinct matters within the meaning of
s. 5 of the Indian Stamp Act in respect
of several
capacities of the respondent mentioned therein.
Per BHAGWATI J. (dissenting).-The fact that the donor of the
power of attorney executes it in different capacities is not
sufficient to constitute the instrument, one comprising
distinct matters and
thus requiring to be stamped with
the
aggregate
amount of the duties with
which separate
instruments each comprising
or relating to one of such
matters would be chargeable under the Act, within the mean-
ing of s. 5 of the Indian Stamp Act.
The instrument in question, Exhibit A, does not
comprise
distinct matters but comprises one matter only
and that
matter is the
execution of a general power of attorney by
the donor in favour of
843
the donees constituting the donees his attorneys to act for
him in all the capacities he enjoys.
It is within the very nature of the
general power of
attorney that all
the distinct acts which the donor
is
capable of performing are comprised in one instrument which
is executed by him and therefore whatever acts the
donor is
capable of performing whether in his individual
capacity or
in his representative capacity as trustee or as
executor or
administrator are
also comprised within the instrument
and
are not distinct
matters to be dealt with as such so as
to
attract the operation of s. 5 of the Indian Stamp Act.
Secretary, Board of Revenue, Madras v. Alagappa
Chettiar
I.L.R. [1937] Mad. 553,
Ansell v. Inland
Revenue
Commissioners
[1929] 1 K.B. 608, Reversionary
Interest
Society v. Commissioners of Inland Revenue [1906] 22 T.L.R.
740, Davis v. Williams [1804] 104 E.R. 358, Bowen v. Ashley
[1805] 127 E.R. 467, Good son v. Forbes [1815] 128 E.R. 999,
Freeman v. Commissioners of Inland Revenue [1870-71]
L.R. 6
Exch. 101, Allen v. Morrison [1828] 108 E.R. 1152, Reference
under Stamp Act, s. 46, [1886] I.L.R. 9 Mad. 358, Reference
under Stamp Act, s. 46, [1891] I.L.R. 15 Mad. 386, Reference
under Stamp Act,
s. 46, [1892] 2 M.L.J. 178, and Vidya
Varuthi v. Balusami, 48 I.A. 302, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 159 of 1954.
Appeal by Special Leave
from the Judgment and Order dated
the 27th day of June 1952 of the Calcutta High
Court in
Matter No. 214 of 1951-A reference under s. 57 of the Indian
Stamp Act.
M. C. Setalvad,
Attorney-General of India (B.
Sen and P.
K. Bose, with him) for the appellant.
S. Chaudhury, (S. N. Mukherjee, B. N. Ghosh and A. K.
Basu, with him) for the respondent.
1955. October 4.
VENKATARAMA
AYYAR J.-This appeal raises
a question under
section 5 of the Indian
Stamp Act II of 1899.
The
respondent was, at the material time, the Managing Director
of Messrs Bird and
Co. Ltd., and of Messrs F. W. Heilgers
and Co., Ltd.,
which were acting as Managing Agents
of
several Companies registered under the Indian Companies Act.
He was also a
Director of a number of other Companies,
and
had on occasions acted as liquidator of some Companies,
as executor or
administrator of estates of deceased
persons and as trustees of various estates. On 4-7-1949
he
applied to the Collector of Calcutta under section 31 of the
Stamp Act for
adjudication of duty payable on a power of-
attorney, marked as
Exhibit A in the proceedings, which he
proposed to execute. By
that power, he empowered Messrs
Douglas Chisholm Fairbairn and John James Brims Sutherland
jointly and severally
to act for him in his
individual
capacity and also
as executor, administrator, trustee,
managing agent,
liquidator and all other capacities. The
Collector referred the matter under section 56(2) of the Act
to the decision of the Chief Controlling Revenue Authority,
who eventually referred it under section 57 to the High
Court of Calcutta stating his own opinion that the
stamp
duty was payable
on the power "for as
many respective
capacities as the
principal executes the
power". The
reference was heard by
a Bench consisting of the
Chief
Justice, Das, J. and
S. R. Das Gupta, J., who differed in
their opinion. The
learned Chief Justice with whom Das, J.
agreed, held that the different capacities of the executant
did not constitute distinct matters for purposes of section
5 of the
Act, and that the proper
duty payable on the
instrument was Rs. 10 under article 48(d) of Schedule 1-A of
the Stamp Act as amended by section 13 of Bengal Act
III of
1922. S. R. Das
Gupta, J. was of the opinion that
the
different capacities of the executant were distinct matters
for the purposes of
section 5, and that the instrument
was
chargeable with the aggregate amount of duty
payable if
separate
instruments were executed in
respect of each of
those capacities. In
the result, the question was answered
in accordance with the opinion of the majority in
favour of
the respondent. Against
that decision, the
Board of
Revenue, West Bengal
has preferred this appeal by special
leave, and contends that the
instrument in question
comprises
distinct matters, and
must be stamped in
accordance with section 5.
The statutory provisions
bearing on the question are
sections 3 to 6 of the Act.
Section 3 is the charg-ing
section,
and it
enacts that subject to certain
exemptions, every
instrument mentioned in the Schedule to
the Act shall be chargeable with the duty of
the amount
indicated therein as
the proper duty therefor. Section
4
lays down that when in the case of any sale, mortgage
or
settlement several
instruments are employed for completing
the transaction, only
one of them called the
principal
instrument is chargeable with the duty mentioned in Schedule
1, and that the other instruments are chargeable each with a
duty of one rupee.
Section 5 enacts that any instrument
comprising or relating to several distinct matters
shall be
chargeable with the aggregate amount of the duties with
which separate
instruments, each comprising or relating
to
one of such matters, would be chargeable under
the Act.
Section 6, so far as is material, runs as follows:
"Subject to the provisions of the last preceding
section, an
instrument so framed
as to come within two or more of the
descriptions in Schedule
I, shall, where the duties
chargeable thereunder are different, be chargeable only with
the highest of such duties".
The point for
decision in this appeal is as to the
meaning
to be given to the
words "distinct matters" in
section 5.
The contention of the respondent which found favour with the
majority of the
learned Judges in the court below is that
the word "matters" in section 5 is synonymous with
the word
"description"
occurring in section 6, and
that they both
refer to the several categories of instruments which are set
out in the
Schedule. The argument in support of
this con-
tention is this:
Section 5 lays down that the duty
payable
when the instrument comprises or relates to distinct matters
is the aggregate
of what would be payable on separate
instruments relating to
each of these
matters. An
instrument would be
chargeable under section 3 only if it
fell within one of the categories mentioned in the Schedule.
Therefore, what is
contemplated by section 5
is a
combination in one
document of different categories
of
instruments such as sale and mortgage, sale and lease
or
mortgage and lease
and the like, But when the category is
one
846
and the same, then section 5 has no application, and
as, in
the present case, the instrument in question is a power-of-
attorney, it would fall under article 48 (a) in
whatever
capacity it was executed, and there being only one category,
there are no distinct matters within section 5.
We are unable to accept the contention
that the word
"matter" in
section 5 was intended to
convey the same
meaning
as the
word "description" in section
6. In
its
popular
sense, the expression
"distinct matters" would
connote something different from distinct
"categories". Two
transactions might be
of the same description, but all the
same, they might be
distinct. If A sells Black-acre to X
and mortgages
White-acre to Y, the transactions fall
under
different categories,
and they are also distinct matters.
But if A mortgages
Black-acre to X and mortgages Whiteacre
to Y, the two transactions fall under the same category, but
they would certainly be distinct matters. If the
intention
of the legislature
was that the expression 'distinct
matters' in section
5 should be understood not in its
popular
sense but narrowly as meaning different
categories
in the Schedule, nothing would have been easier than to say
so. When two
words of different import are used in a
statute in two consecutive provisions, it would be difficult
to maintain that they
are used in the same sense, and the
conclusion must
follow that the expression
"distinct mat-
ters" in section 5 and "descriptions"
in section 6 have
different connotations.
It is urged
against this conclusion that
if the word
"matters"
in section 5 is construed as
meaning anything
other than "categories" or in the phraseology of
section 6,
"descriptions" mentioned
in the Schedule, then there could
be no conflict
between the two sections, and the clause
in
section 6 that it is
"subject to the provision of the last
preceding section" would be meaningless and
useless. We see
no force in this
contention. Though the topics
covered by
sections 5 and 6
are different, it is not difficult
to
conceive of instruments which might raise questions falling
to be determined under both the sections. Thus, if a part-
nership carried on by
members of a family is wound up and
the deed of dissolution effects also a partition
of the
family properties as in
Secretary, Board of Revenue
v.
Alagappa Chettiar(1), the instrument can be viewed both as a
deed of dissolution
and a deed of partition, and
under
section 6, the duty payable will be the higher duty as on an
instrument of
partition. But supposing by that very deed
one of the members creates a charge or mortgage over
the
properties allotted to his share in favour of another member
for moneys borrowed by him for his own purposes, that would
be a distinct matter which would attract section 5. Now, but
for the saving
clause, a contention might be advanced that
sections 5 and 6 are mutually exclusive, and as the in-
strument falls within
section 6, the only duty
payable
thereon
is as on an instrument of partition
and no
more.
The purpose of the clause in section 6 is to repel any such
contention.
Considerable stress was laid by Mr. Chaudhury on the scheme
of the Act as
embodied in sections 3 to 6 as strongly
supporting the view
that 'matters' in section 5 meant the
same thing as 'description' in section 6. He argued that
under section 3 the duty was laid not on all instruments but
on those which were of the descriptions mentioned in
the
Schedule, that
section 4 enacted a special provision with
reference to three
of the categories mentioned
in the
Schedule, sale
(conveyance), mortgage and settlement, that
if they were completed in more than one instrument, not all
of them were liable for the duty specified in the Schedule,
but only one of them called the principal document, and that
section 6 provided
that when the instrument fell under
two
or more of the categories in the Schedule, the duty payable
was the highest
payable on any one of them, that thus the
categories in the
schedule were the pivot on which
the
entire scheme
revolved, and that in construing the
section
in the light of
that scheme, the
expression "distinct
matter" must in the setting
be construed as distinct
categories. To
construe "distinct matters" as
(1) I.L.R. [1937]
Mad. 553.
something different from "distinct categories"
would be, it
was argued, to introduce a concept foreign to the
scheme of
the enactment.
The error in this argument lies in thinking that the object
and scope of sections 4 to 6 are the same, which in fact
they are not.
Section 4 deals with a single transaction
completed in several instruments,
and section 6 with a
single transaction
which might be viewed as falling under
more than one category, whereas section 5 applies only when
the instrument
comprises more than one transaction, and
it
is immaterial for
this purpose whether those transactions
are of the same
category or of different categories. The
topics dealt with
in the three
sections being thus
different, no useful purpose will be served by
referring to
section 4 or section 6 for determining the scope of section
5 or for
construing its terms.
It is not
without
significance that the
legislature has used three different
words in relation to
the three sections, 'transaction' in
section 4, matter'
in section 5, and
'description' in
section 6.
In support of his contention that 'distinct matters' in
section 5 meant only
different categories, learned counsel
for the respondent relied on certain observations in Ansell
v. Inland Revenue
Commissioners(1). There, the instrument
under consideration was a deed of settlement which comprised
certain Government securities as also other investments, and
under the Stamp Act,
1891, it was chargeable with a single
duty ad valorem on the value of all the properties settled.
By section 74, sub-section (1) of the Finance Act, 1910,
voluntary
dispositions were chargeable with a higher stamp
duty as on a conveyance; but Government securities
were,
exempted from the
operation of the section. The question
that arose for decision was whether a separate duty
was
payable in respect of Government stocks under the provisions
of the Stamp Act,
1891 over and above what was
paid under
section 74, sub-section (1) of the Finance Act,
1910 on
account of
other investments. Answering
it in the
affirmative, Rowlatt, J. observed:
(1) [1929] 1 K.B.
608,
"If two different classes of property are being transferred
by the same words of
assignment in the same document, and
those two different classes of property in the same document
are different from
the point of view of the Stamp Act and
taxation, it seems to
me in common sense that they must be
distinct matters".
The respondent wants
to read these observations as meaning
that where the matters are not dealt with separately
for
purposes of stamp duty, then they are not distinct matters.
This, however, does
not follow. The case before the court
was one in which the instrument dealt with properties which
fell under' two
categories, and the decision was that they
were distinct matters. There
is nothing either in the deci-
sion or the
observations quoted above
to support the
contention of the
respondent that if the instrument
comprises matters falling within the same description, it is
not to be
construed as comprising
distinct matters.
Reliance was also placed on the observations in Reversionary
Interest Society v.
Commissioners of Inland Revenue(1), in
which it was held
that a statutory declaration for
the
purpose of
carrying through a transaction was liable for
a
single stamp duty.
There, the declaration was made
by
husband and
wife, and in view of the purpose for
which it
had to be used, it
was construed as one declaration. This
is a decision on the facts, and is not of much assistance.
In the view, then, that section 5 would apply even when the
instrument comprises
matters of the same description, the
point for decision is whether the instrument proposed
to be
executed by the respondent is a single
power-of-attorney or
a combination of several of them. The contention of
Mr.
Chaudhury is that
when the executant
of one
instrument
confers on
the attorney a general authority to act for
him
in whatever matters
he could act, then there is, in fact,
only a single delegation, and that therefore the instrument
must be construed as a single power-of attorney liable for a
single duty under article 48(d)
(1) [1906] 22 T.L R.
740.
of the Schedule. The contention of the appellant, on
the
other hand, is that though the instrument is executed by one
person, if he fills several capacities and the
authority
conferred is general, there would be distinct delegations in
respect of each of those capacities, and that the instrument
should bear the
aggregate of stamp duty payable in
respect
of each of such capacities.
The question is which of these
two contentions is correct.
We are unable to agree with the
respondent 'that when a
person executes a
power-of-attorney in respect of all the
matters in which
he could act, it should be held, as a
matter of law and without regard to the contents
of the
instrument, to comprise a single matter. Whether it relates
to a single
matter or to distinct matters
will, in our
opinion, depend on a
number of factors such as who
are
parties thereto, which is the subject-matter on which
it
operates and so
forth. Thus, if A executes one
power
authorising X to
manage one estate and Y to manage
another
estate, there would
really be two distinct matters, though
there is only one instrument executed by one person. But if
both X and Y are
constituted attorneys to act jointly and
severally in respect of both the estates, then there is only
one delegation and one matter, and that
is specifically
provided for in
article 48(d). Conversely, if a
number of
persons
join in
executing one instrument,
and there is
community of interest between them in the
subject-matter
comprised therein, it will be chargeable with a single duty.
This was held in
Davis v. Williams(1), Bowen v.
Ashley(1),
Good-son v. Forbes(1) and other cases. But if the interests
of the executants
are separate, the instrument must
be
construed as
comprising distinct matters. Vide
Freeman v.
Commissioners of Inland
Revenue(1). Applying the same
principle to powers-of-attorney, it was held in Allen
v.
Morrison(1) that when members of a mutual insurance club
executed Single power,
it related to one matter , Lord
Tenterdon, C. J.
observing that "there was certainly
a
community of
(1) [1804] 104 E.R.
358.
(2) [1805] 127 E.R.
467, 469.
(3) [1815] 128 E.R.
999, 1000-1001.
(4) [1870-71] L.R. 6
Exch. 101.
(5) [1828] 108 E.R. 1152, 1153.
purpose
actuating all the members of
this club". In
Reference under Stamp Act, s. 46(1), a power-of
attorney
executed by thirty-six persons in relation to a
fund in
which they were
jointly interested was held to
comprise a
single matter. A similar decision was given in
Reference
under Stamp Act, s. 46(2) where a
power-of-attorney was
executed by ten
mirasdars empowering
the collection of
communal income appurtenant to their mirasi rights. On
the
other hand, where
several donors having separate interests
execute a
single power-of-attorney with reference to
their
respective properties as, for example, when A
constitutes X
as attorney for
management of his estate Black-acre
and B
constitutes the same
person as attorney for the management
of his estate
White-acre, then the instrument must be held
to comprise distinct matters. It
was so decided in
Reference under Stamp Act, 8. 46(3). Thus, the question
whether a
power-of attorney relates to distinct matters
is
one that will have to
be decided on a consideration of
the
terms of the instrument and the nature and the extent of the
authority conferred thereby.
It may be mentioned that questions of this character cannot
now arise in England
in view of the
special provision
contained in the Finance Act, 1927 (17 & 18, Geo. 5,
Ch.
10), section 56 which runs as follows:
"No instrument chargeable with stamp duty under
the heading
Letter or Power
of Attorney and
Commission, Factory,
Mandate, or other
instrument in the nature thereof' in
the
First Schedule to the Stamp Act, 1891, shall be charged with
duty more than once
by reason only that more persons than
one are named in the instrument as donors or donees (whether
jointly or severally
or otherwise), of the powers thereby
conferred or that
those powers relate to more than
one
matter".
There is no provision in the statute law of this
country
similar to the above, and it is significant that it assumes
that a power of
attorney might consist of distinct
matters
by reason of the fact that there are
(1) [1886] I.L.R. 9 Mad. 358.
(2) [1891] I.L.R. 15 Mad.
386.
(3) [1892] 2 M.L.J. 178.
several donors or donees mentioned in it, or that it relates
to more than one matter.
Now, considering Exhibit
A in the light
of the above
discussion, the point for determination is whether it can be
said to comprise distinct matters by reason of the fact that
the respondent has executed it in different capacities. In
this form, the question is bereft of authority, and falls to
be decided on
well-recognised principles applicable to
the
matter. It is, as has been stated above, settled law that
when two persons join in executing a power-of-attorney, whe-
ther it comprises distinct matters or not will depend
on
whether
the interests of the executants in
the subject-
matter of the power
are separate or joint. Conversely, if
one person holding
properties in two different
capacities,
each unconnected with the other, executes a power in respect
of both of them, the instrument should logically be
held to
comprise distinct matters.
That will be in consonance with
the generally accepted notion of what are distinct matters,
and that certainly was the view which the respondent himself
took of the matter
when he expressly recited in the power
that he executed it
both in his individual capacity and in
his other capacities.
But it is contended by Mr.
Chaudhury
that the fact that the respondent filled several capacities
would not affect the character of the instrument as relating
to a single matter, as the delegation thereunder extended to
whatever the respondent
could do, and that it would
be
immaterial that be
held some properties in his individual
capacity and some others as trustee or executor,
as the
legal title to all of them would vest in him equally in the
latter as well as in the former capacity. We are concerned,
he argued, not with
the source from which the title flowed
but with the reservoir in which it is now contained.
This is to attach more importance to the form of the matter
than to its substance. When
a person is appointed trustee,
the legal title to
the estate does, under the English law,
undoubtedly vest in
him; but then he holds it for the
benefit of the cestui que trust in whom the equitable estate
vests. Under the Indian
law, it is well established that there can be
trusts
and fiduciary relations in the nature of trust even without
there being a vesting of the legal estate in the
trustee as
in the case of mutts and temples. Vide Vidya
Varuthi v.
Balusami(1). In such
cases, the legal title is vested in
the institution, the mahant or shebait being the
manager
thereof, and any delegation of authority by him can
only be
on behalf of the
institution which he represents.
When a
person possesses both a personal capacity and a representa-
tive capacity, such
as trustee, and there is a
delegation"
of power by him in
both those capacities, the position in
law is exactly the same as if different persons
join in
executing a power in respect of matters which are unrelated.
There being no
community of interest between the personal
estate belonging to the
executant and the trust
estate
vested in him, they must be held to be distinct matters for
purposes of section
5. The position is the same when a
person is executor
or administrator, because
in that
capacity he represents the estate of the deceased,
whose
persona
is deemed to
continue in him for purposes of
administration.
It was finally contended by Mr. Chaudhury that
if every
capacity of the donor is to be considered as
a distinct
matter, we should
have to hold that there are
distinct
matters not only
with reference to the
capacity of the
executant as trustee, executor and so forth, but in respect
of every transaction entered into by him in his
personal
capacity. Thus, it is
argued, if he confers on his attorney
authority to sell one
property, to mortgage another and to
lease a third,
he would have acted in
three different
capacities as vendor,
mortgagor and lessor,
and the
instrument will have to be stamped as relating to three
distinct
matters. This, he contended,
would destroy the
very basis of a
general power-of-attorney. The
fallacy in
this argument is in
mixing up the capacity which a person
possesses with acts exercisable by virtue of that capacity.
When an executor,
for example, sells one
property for
discharging the debts of the testator and
(1) [1921] 48 I.A.
302.
mortgages
another for raising funds
for carrying on
his
business, he no doubt acts in two different transactions but
in respect of
both of them, he functions
only in his
capacity as executor.
In our opinion, there is no substance
in this contention.
In the result, we are of the opinion, differing from
the
majority of the learned Judges of the court below, that the
instrument, Exhibit A, comprises distinct matters in respect
of the several
capacities of the
respondent mentioned
therein, and that the view taken by the revenue authorities
and supported by S. R. Das Gupta,
J. is correct. This
appeal will accordingly be allowed. The respondent will pay
the costs of the appellant here and in the court below.
BHAGWATI J.-I regret I am
unable to agree
with the
conclusion reached in the Judgment just delivered.
While agreeing in the
main with the construction put upon
sections 4, 5 and 6
of the Act and the connotation of the
words "distinct matters" used in section 5, 1 am
of the view
that the question
still survives whether the instrument in
question is a single
power of attorney or a combination of
several of them. The argument which has impressed my Bro-
ther Judges forming the majority of the Bench is that though
the instrument is
executed by one individual, if he fills
several capacities and
the authority conferred is general,
there would be
distinct delegations in respect of
each of
those capacities and
the instrument should
bear the
aggregate of stamp
duty payable in respect of each of such
capacities. With the
greatest respect I am unable to accede
to that argument. I
agree that the question whether a power
of attorney relates to distinct matters is one that will
have to be decided on the consideration of the terms of 'the
instrument and the
nature and the extent of the authority,
conferred thereby.
The fact, however, that the donor of the
power of attorney executes it in different capacities is not
sufficient in my
opinion to constitute the instrument one
comprising distinct matters and thus requiring to be
stamped with
the aggregate amount of the duties with
which
separate instruments
each comprising or relating to one of
such matters would be
chargeable under the Act, within
the
meaning of
section 5. The transaction is a
single
transaction whereby the donor constitutes the donees jointly
and severally his
attorneys for him and in his name and on
his behalf to act for him in his individual capacity
and
also in his
capacity as managing
director, director,
managing agent, agent,
secretary or liquidator
of any
company in which he is or may at any time, thereafter be in-
terested in any
such capacity as aforesaid
and also as
executor,
administrator, trustee or
in any
capacity
whatsoever as
occasion shall require. No doubt, different
capacities enjoyed by the donor are combined herein but that
does not constitute him different individuals thus bringing
this instrument within
the mischief of section
5. The
executants of the instrument are not several individuals but
is only one individual, the donor himself, though he enjoys
different capacities. These different capacities have a
bearing on the nature and extent of the powers
which he
could exercise as
such. In his own individual
capacity he
could exercise all the powers as the full owner qua whatever
right, title and interest be enjoys in the property, whether
it be an absolute
interest or a limited one. he may be the
absolute owner of the
property or may have a life interest
therein, he may have a mortgagee's interest or a
lessees
interest therein, he
may be a dominant owner of a tenement
or may be a mere licensee;
but whatever interest be enjoys
in that property will be the subject-matter of the
power
which he executes in favour of the donee. He
may, apart
from this individual interest which he enjoys therein,
be a
trustee of certain
property and be may also
enjoy the
several interests
described above in his capacity as such
trustee. It may be
that, in his turn he may be accountable
to the beneficiaries for
the due administration of the
affairs of the trust but that does not mean that
he, as
trustee, is not
entitled to exercise all these powers,
the
trust property having vested in him, and he being therefore
in a position to exercise
all these powers in relation thereto. The same would be the
position if he were
an executor or an administrator of an
estate, in possession of the estate of the deceased as such.
The property of the
deceased would vest in him though his
powers of dealing
with the same would be
circumscribed
either by the
provisions of the testamentary instrument
or
the limitations imposed upon the same by law.
All these
circumstances
would certainly impose limitations on his
powers of dealing with the properties but that
does not
detract from the
position that he is entitled to deal with
those properties and exercise all the powers in
relation
thereto though with the limitations imposed
upon them by
reason of the
capacities which he enjoys. It
follows,
therefore, that, though enjoying different capacities, he is
the same individual
who functions though
in different
capacities and conducts
his affairs in
the various
capacities which he
enjoys but as a single individual. He
is not one
individual when be is acting in his
own
individual capacity; he is not another individual when he is
acting as a trustee
of a particular estate and he is not a
third individual when
he is acting as an executor
or
administrator of a deceased person. In whatever capacity he
is acting he is the same individual dealing with
various
affairs with which he
is concerned though with the limita-
tions imposed upon his powers of dealing with the properties
by reason of the properties
having vested in him in
different capacities.
I am therefore
of the opinion that
the instrument in
question does not
comprise distinct matters but comprises
one matter only
and that matter is the execution
of a
general power of attorney by the donor in favour
of the
donees constituting the donees his attorneys to act for him
in all the capacities
which he enjoys. The instrument
in
question cannot be
split up into separate instruments each
comprising or relating to a distinct matter in so far as the
different capacities of the donor are concerned. A
general
power of attorney
comprises all acts which can be
done by
the donor himself,
whatever be the capacity or capacities
which he enjoys and cannot be split up
into individual acts which the donor is capable
of per-
forming and which he appoints his attorney to do for him and
in his name and on his behalf. It is within the very nature
of the general power of attorney that all the distinct acts
which the donor is
capable of performing are comprised in
the one instrument which is executed by him, and if
that is
the position, it is but logical that whatever acts the donor
is capable of performing whether in his individual capacity
or in his representative capacity as trustee or as executor
or administrator are
also comprised within the instrument
and are not distinct matters to be dealt with as such
so as
to attract the operation of section 5.
I am therefore of the opinion that the conclusion reached by
the majority Judges
in the High Court of Judicature
at
Calcutta was correct and would accordingly
dismiss this
Appeal with costs.
BY THE COURT.-In accordance with the opinion of the majority
the Appeal is
allowed with costs here and in the
Court
below.
