The Member, Board of Revenue Vs.
Arthur Paul Benthall  INSC 51 (4 October 1955)
AIYYAR, T.L. VENKATARAMA AIYAR, N.
CHANDRASEKHARA DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H.
IMAM, SYED JAFFER
CITATION: 1956 AIR 35 1955 SCR (2) 842
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.
Held per S. R. DAS, ACTING C. J., VENKATARAMA
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
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 meaning of s. 5 of the Indian Stamp
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.  Mad. 553, Ansell v. Inland Revenue
Commissioners  1 K.B. 608, Reversionary Interest Society v. Commissioners
of Inland Revenue  22 T.L.R.
740, Davis v. Williams  104 E.R. 358,
Bowen v. Ashley  127 E.R. 467, Good son v. Forbes  128 E.R. 999,
Freeman v. Commissioners of Inland Revenue [1870-71] L.R. 6 Exch. 101, Allen v.
Morrison  108 E.R. 1152, Reference under Stamp Act, s. 46,  I.L.R.
9 Mad. 358, Reference under Stamp Act, s. 46,  I.L.R. 15 Mad. 386,
Reference under Stamp Act, s. 46,  2 M.L.J. 178, and Vidya Varuthi v.
Balusami, 48 I.A. 302, referred to.
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,
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 charging 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 there for. 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
"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 there under 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
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 contention 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 White acre 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 matters"
in section 5 and "descriptions" in section 6 have different
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 partnership 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 instrument
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.  Mad.
848 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)  1 K.B. 608, 849 "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
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 decision 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)  22 T.L R. 740.
850 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
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)
 104 E.R. 358.
(2)  127 E.R. 467, 469.
(3)  128 E.R. 999, 1000-1001.
(4) [1870-71] L.R. 6 Exch. 101.
(5)  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
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)  I.L.R. 9 Mad. 358.
(2)  I.L.R. 15 Mad. 386.
(3)  2 M.L.J. 178.
108 852 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, 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 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 there under
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 853 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
representative 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
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)  48 I.A. 302.
854 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 Brother 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 855 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 interested 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 856 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 limitations 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 857 into individual acts which the donor is capable of performing
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.