6.
Powers of attorney given for valuable consideration
(1)
If a power of attorney, given for valuable consideration, is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser — (a)
the power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power; and
(b)
any act done at any time by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened; and
(c)
neither the donee of the power, nor the purchaser, shall at any time be prejudicially affected by notice of anything done by the donor of the power, without the concurrence of the donee of the power, or of the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power.
(2)
This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act.
Shall not be revoked. Under s 6, a power of attorney given for valuable consideration stated therein cannot be revoked, and in favour of a purchaser (i) cannot be revoked at any time without the agreement of the donee; (ii) whatever acts done by the donee in accordance with the powers given therein are valid; (iii) notice regarding any acts done by the donor will not prejudice the donee or purchaser. To determine the powers granted under a power of attorney, the purpose or intention of the donor is relevant to the extent provided for in the deed: see Sekh Abu Bakar Ahmad v Sheikh Omar Sheikh Abdullah & Anor [1998] 3 CLJ 316. In Tan Chong Keat Sdn Bhd v Pintar Pintas Sdn Bhd [2005] 4 MLJ 201, on the issue of power of attorney given for valuable consideration, the court referred to Halsbury′s Laws of England (9th edn) at
p 184 where it is stated that 'Valuable consideration has been defined as some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other at his request. It is not necessary that the promisor should benefit by the consideration. It is sufficient if the promisee does some act from which a third person benefits, and which he would not have done but for the promise'. In Hj Fauzi Hj A Majid v Kenangan Erat Sdn Bhd [2005] 8 CLJ 230, Low Hop Bing J held that powers of attorney given for valuable consideration are governed by. Upon a proper construction of s 6(1)(a), valuable consideration is an essential element in order to sustain the irrevocability of a power of attorney. The basic feature of the requirement of consideration lies in the idea of reciprocity in that 'something of value in the eye of the law' must be given for a promise in order to make it enforceable as a contract. A valuable consideration, in the eyes of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other: see Malaysia Building Society Bhd v Johore Mining and Stevedoring Company Sdn Bhd & Anor [2004] 5 CLJ 82. In Kimlin Housing Development Sdn Bhd (Appointed receiver and manager) (In liquidation) v Bank Bumiputra (M) Bhd & Ors [1997] 2 MLJ 805, the appellant executed a deed of debenture in favour of the respondent to secure various banking facilities. The debenture provided for the bank to appoint receivers and managers and for such receivers and managers to have certain powers. Subsequently, the respondent appointed the receivers and managers. Edgar Joseph SCJ in the Supreme Court held that had the debenture been deposited under s 4 ante, then s 6(1)(a) would have rendered the liquidation of no consequence to the validity of the power of the receiver to make good title to the company's property in the company's name and thus the receiver could sell the land. In United Malayan Banking Corp Bhd v Official Receiver and Liquidator of Soon Hup Seng Sdn Bhd (In Liquidation) & Anor [1986] 1 MLJ 75, the second respondent (a company) had executed a debenture to borrow more money from the petitioner with power to appoint a receiver under certain contingencies. Meanwhile a creditor of the company had obtained a decree against the company for RM41,328.77 with costs and also obtained a prohibitory order against the said land. The petitioner later appointed a receiver of the company's properties. The creditor then filed a winding up
petition against the company which was ordered to be wound up. The creditor argued that upon the commencement of the liquidation, the agency of the Receiver for the Company came to an end. Shankar J (as he then was) in the High Court held that a clear distinction must be drawn between the termination of the agency and the survival of the powers of the debenture holder. The court held that the powers of the debenture holder transcend and exist independently of the liquidation. The court referred to s 6(1)(a) and held that had the debenture been deposited under s 4 ante, s 6(1)(a) would have rendered the liquidation of no consequence to the validity of the debenture. In Muniandy a⁄l Ayappareddi & 6 Ors v Krishnan a⁄l Kanapathy [1994] 1 LNS 94, since the cancellation was being effected by order of Court, it was held that the concurrence of the defendant prescribed by s 6 was unnecessary. See generally 11(2) Halsbury's Laws of Malaysia [320] Powers of Attorney (2007 Reissue) (Revised Title Scheme).
Death. Section 6 sets out the rights of the donee of a power of attorney expressed to be irrevocable. One of those rights is that any act done by him after the death of the donor of the power shall be as valid as if the death had not happened. In T Nallapiravy & Anor v Mahadevan & Anor [1978] 2 MLJ 119, the High Court held that the power of attorney in this case had been declared to be irrevocable in the deed itself and was not effected by the death of the donor by reason of s 6. In Dan Sin Wah v Chan Hai Wee [1951] MLJ 189, the plaintiff, purporting to act as an attorney of Chan by virtue of an irrevocable power of attorney registered under the Land Code (FMS Code 138), executed a transfer of the second undivided half-share of the trust property to himself personally and the transfer was registered. At the time of execution of the transfer, the plaintiff admittedly knew that Chan was dead. It was contended that by virtue of s 6 of the Powers of Attorney Ordinance 1949 (revised in 1990 to become the Powers of Attorney Act 1949), the plaintiff was entitled to execute a valid transfer of the second half-
share, just as he would have been entitled to execute it if Chan had not died. The High Court held that an irrevocable power of attorney does not enable a donee to get a transfer, signed by himself as attorney after the death of the donor of the power, registered under that Code. Under s 185 of the Land Code, the registering authority may require proof to his satisfaction of the continuance in force of any power of attorney. Although this power was an old one, it does not appear that the registering authority asked for proof of its continuance in force, and this would probably be a natural course to adopt, in view of the fact that it was expressed to be irrevocable, and in view of the provisions of s 6 of that Ordinance. So far as the execution of the transfer was concerned, the question whether Chan had died was immaterial, and there could be no revocation by his act. However, that did not conclude the matter. Section 85(ii) of the Land Code provides that 'the death of any person prior to the presentation of any instrument executed by him shall prevail so as to prohibit registration of such instrument, and such instrument if registered shall be void'. It was contended by the plaintiff that, if a conflict arises between the provisions of that Ordinance and of s 85(ii) of that Code, the Powers of Attorney Ordinance must prevail. The court held that s 6 of that Ordinance is concerned exclusively with what may lawfully be done by the donee of a power. Section 85(ii) of the Land Code is concerned exclusively with what may lawfully be done by a registering authority and with the consequences of infringement. The Power of Attorney Ordinance validates the transfer but the Land Code prevents its registration. In the Estate of Syed Abdullah bin Abdulrahman bin Sahil, Deceased [1939] MLJ 179, the deceased died intestate and a grant of Letters of Administration was made to attorney of his widow. The widow and administrator both died. The three surviving next of kin of the deceased gave a power of attorney to plaintiff to apply for a grant of letters of administration de bonis non and such a Grant was made to the plaintiff as such attorney. Thereafter one of the next of kin, grantors of the power of attorney, died. The power of attorney made no reference to survivorship amongst the principals. The court held that the grant of letters of administration de bonis non in favour of the plaintiff was not revoked by the death of one of the grantors of the power of attorney. In Mohamed Moidu bin Mohammed & Anor v Hassan bin Kadir & 2 Ors [1997] 1 LNS 569, the deed was expressed to be irrevocable in favour of the plaintiffs and the court held that it will not be revoked by virtue of s 6(1)(a) on the death of the defendants' father. A winding-up order does not cancel a power of attorney: see K Balasubramaniam, Liquidator for Kosmopolitan Credit & Leasing Sdn Bhd (In Liquidation) v Mbf Finance Bhd & Anor [2005] 2 MLJ 201.
Interest over land. Once the attorney is given an irrevocable power of attorney for valuable consideration to enable the attorney as the donee to sell, assign or charge to any person any land and for that purpose to sign and execute all assignment transfers and other necessary instruments, the said power of attorney gives the attorney a caveatable interest on the land: see Lian Lee Construction Sdn Bhd v Joyous Seasons Sdn Bhd & Anor [2008] 8 MLJ 387, where an irrevocable power of attorney was given by the first defendant to the plaintiff as a security for the payment of the contract price for the performance of renovation works. The power of attorney conferred rights on the plaintiff to sell, transfer, charge or otherwise deal with the land. Mohd Yazid JC held that the power of attorney was not a limited power to deal with the land in a limited manner as submitted by the defendants. Under s 6(1)(c), the first defendant was not entitled to deal with the land without the consent of the plaintiff. See generally 11(2) Halsbury's Laws of Malaysia [320] Powers of Attorney (2007 Reissue) (Revised Title Scheme).
