1. The petitioner brought a suit to recover rents from defendants Nos. 1 to 3 who had attorned to him under a marupat. The plaintiff is the karnavan of the tarwad. The 6th defendant is a junior member to whom the plaintiff had given a power-of-attorney to collect the rents. The plaintiff says that he had revoked this power-of-attorney on 22nd September 1927 and that the payment of rent made by the defendants in December 1927 to 5th fefendant was consequently invalid. Two pleas were raised in defence that the defendant had mortgaged the property to D. W. No. 1 with instructions to pay the rent to the 5th defendant and that D. W. No. 1 was not aware of the cancellation. The second is that the cancellation itself was illegal. I have not considered it necessary to call on the respondents to answer the first point because on the second I think the decision is correct.
2. The petitioner contends that the cancellation is valid, that if it was made before the time fixed in the power-of attorney for its termination the only remedy is one by way of damages under Section 205 of the Indian Contract Act and that the 5th defendant had no interest in the property as described in Section 202. The question therefore is whether the 5th defendant had any such interest in the property as is contemplated under Section 202. The 5th defendant is a member of the tarwad and entitled to be maintained out of the tarwad property. The rents are part of the tarwad property and he in my opinion has a clear interest in the rents before and after the grant to him of the power-of attorney. Under Section 202, Pollock and Mulla state with regard to 'authority coupled with interest' that in England the word 'coupled' implies beyond the mere fact of the agent having an interest in the subject-matter, some specific connection between the authority and the interest. They quote from Smart v. Sandars (1848) 5 C.B.895 at p. 917 : 17 L.J.C.P.258 12 Jur. 751 : 75 R. R., 849 : 136 E. R. 1132, as follows.
We think this doctrine---i. e., the rule of the present section---applies only to cases where the authority is given for the purpose of being : a security, or as part of the security, not to cases where the authority is given independently, and the interest of the donee of the authority arises afterwards, and incidentally only, as, for instance, in the present case goods are consigned to a factor for sale. This confers an implied authority to sell. Afterwards the factor makes advances. This is not an authority coupled with an interest but an independent authority, and an interest subsequently arising.
3. It appears to me from this that in English Law if the interest was previous to the authority, it would be such an interest as is contemplated in a. 202. Under the heading 'Indian authorities' at page 675 the cases quoted are ones where the agent had no interest antecedent to the authority.
4. I must hold in the present case that the 5th defendant (agent) had an interest in the property namely the rents due to the tarwad and that the cancellation of his authority was illegal, the conditions of such cancellation not having been complied with as pointed out by the lower Court.
5. The petition fails and must be dismissed with costs.