Power - Definition - Law Dictionary Home Dictionary Definition power

Definition :

Power, in respect of court the word 'power' means an authority expressly or impliedly conferred on the court by law to do that which without that sanction it could not have done, consent cannot give jurisdiction, K.E. v. Vithu, (1899) 1 Bom LR 157.

Power, is an authority reserved by, or limited to, a person to dispone, either wholly or partially, of movable or immovable property, either for his own benefit or for that of others. The word is used as a technical term and is distinct from the dominion which a man has over his own estate by virtue of ownership, Stroud's Judicial Dictionary.

Power, is not synonymous with jurisdiction, K.E. v. Vithu, (1899) 1 Bom LR 157.

Power, may be general or implied. The general powers are such as the donee can exercise in favour of such person or persons as he pleases, including himself, Mahadeo Ramchandra v. Damodar Vishwanath, AIR 1957 Bom 218.

Means any form of energy which is not generated by human or animal agency. [The Gujarat Lifts and Escalators Act, 2000, s. 2(k)]

Means authority given by one to another to act for him, or to do certain specified acts. Powers are never imperative; they leave the act to be done at the Will or the party to whom they are given. Trusts are always imperative and are obligatory upon the conscience of the party entrusted. The test is whether what is expressed by the testator is his direction intended to contract the conduct of the person to whom it is addressed; or whether it is merely his wish or indication of his mind that the person appointed by him should use his own discretion and act as he thought best. In the former case, it is a trust, whereas in the latter case, it is power. Powers may be general or limited general powers are such as the donee can exercise in favour of such person or persons as he pleases, including himself. Where it is a case of power, there can be no question of the testators direction being defective from uncertainty, Mahadeo Ramchandra v. Damodar Vishwanath, AIR 1957 Bom 218: (1957) 59 Bom LR 478.

Means the ability to do something or to act in a particular way, Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2000) 3 SCC 184.

Power, must be considered along with the words 'privileges and immunities' to which the said clause refers, and there can be no doubt that the said words can have no reference to the effect of dissolution, Purushottam Nambudri v. State of Kerala, AIR 1962 SC 694. [See also Constitution of India, Arts. 149(3), 196]

Power, must be construed with respect to privileges and immunities, Purushottam Nambudri v. State of Kerala, AIR 1962 SC 694.

A power is an authority reserved by or limited to a person to dispose, either wholly or partially, of real or personal property, either for his own benefit or that of others, Farwell on Powers; and see Freme v. Clement (1881) 18 Ch D 499. So far as they relate to land, powers are either (1) Common Law authori-ties; (2) declarations, or directions, operating only on the conscience of the persons in whom the legal interest is vested; or (3) declarations or directions deriving their effect from the Statute of Uses. A power given before 1926 by a will to A., an executor, to sell an estate, to whom no estate was devised, and a statutory power to sell estates, as in the instance of the Land Tax Redemption Acts, are both Common Law authorities. The estate passed by force of the will or passes by force of the Act, and the person who executes the power merely nominates the party to take the estate. A power of attorney is also a Common Law authority. A power to dispose of an estate or sum of money where the legal interest is vested in another may be a power of the second sort. The legal interest is not divested by the execution of the power, but equity will compel the person seised of it to clothe the estate created with the legal right. Powers deriving their effect from the Statute of Uses are either given to a person who has an estate limited to him by the deed creating the power, or who had an estate in the land at the time of the execution of the deed; or to a stranger, to whom no estate is given, but the power is to be exercised for his own benefit; or to a mere stranger to whom no estate is given, and the power is for the benefit of others. For the difference between a power vested in a public authority for the purposes of a statute, and property, see Russ and Brown's Contract, 1934, Ch 34.

By the (English) Law of Property Act, 1925, s. 1 (8), all powers of appointment over, or powers to convey or charge land or any interest therein, whether created by statute or other instrument or implied by law, and whether created before or after the Act, will operate only in equity and are termed equitable powers. The only exceptions are legal powers (see ibid., s. 1 (8)) which can operate in law after 1925, i.e., the powers vested in legal mortgagee; the powers vested in an estate owner and exercisable by him or on his behalf; certain statutory powers (see ss. 7 and 8, ibid.). This Act, having abolished the Statute of Uses powers deriving their effect by way of a declaration to uses will, after 1925, only take effect as either legal or equitable powers. By the same Act (s. 205, (1) (xi.): 'Legal power' include the powers vested in a chargee by way of legal mortgage or in an estate owner under which a legal estate can be transferred or created, and 'equitable powers' mean all the powers in or over land under which equitable interests or powers only can be transferred or created.

The classification of powers appearing below has been retained for the determination of legal titles existing before 1925 and because the equitable force of powers has been preserved by the (English) Law of Property Act, 1925, s. 3.

(1) Collateral, which are given to strangers, i.e., to persons who have neither a present nor future estate or interest in the land. These are also called simply collateral, or powers not coupled with on interest, or powers not being interests. These terms have been adopted to obviate the confusion arising from the circumstance that powers in gross have been by many called powers collateral, Saville v. Blackett, (1721) 1 P Wms 777.

(2) Relating to the land, which are either--

(a) Appendant, or appurtenant, because they strictly depend upon the estate limited to the person to whom they are given. Thus, where an estate for life is limited to a man, with a power to grant leases in possession, a lease granted under the power may operate wholly out of the life-estate of the party executing it, and must in every case have its operation out of his estate during his life. Such an estate must be created, which will attach on an interest actually vested in himself; or,

(b) In gross, which are given to a person who had an interest in the estate at the time of the execution of the deed creating the power, or to whom an estate is given by the deed, but which enable him to create such estates only as will not attach on the interest limited to him. Of necessity, therefore, where a man seised in fee settles his estate on others, reserving to himself only a particular power, the power is in gross. A power to a tenant for life to appoint the estate after his death amongst his children, a power to jointure a wife after his death, a power to raise a term of years to commence from his death for securing younger children's portions, are all powers in gross.

A power may, with reference to the particular estates in the land over which it extends, have different aspects; it may, in regard to one, be a power appendant; in respect to another, a power in gross. Thus where an estate is settled to A. for life, remainder to B. in tail, remainder to A. in fee, and A. has a power to jointure his wife after his death, this power is in gross as to the estate for life, but appendant or appurtenant as to the remainder in fee. It may affect the latter, but never can attach on the former.

An important distinction is established between general and particular or special powers. By a general power we understand a right to appoint to whomsoever the donee pleases. Such a power is, in fact, merely a mode of ownership. By a particular power it is meant that the donee is restricted to some objects designated in the instrument creating the power, as to his own children.

A power is expounded strictly; therefore, if a man has power to make leases generally, this extends to make leases in possession only, and not in reversion.

Powers appendant may be destroyed by release, bargain and sale, or feoffment; powers in gross, by feoffment or release; but powers simply collateral could not formerly be destroyed by the act of the person to whom they are given. By s. 52 of the (English) Conveyancing Act, 1881, replaced by the (English) Law of Property Act, 1925, s. 155, however, a person to whom any power, whether coupled with an interest or not, is given, may by deed release, or contract not to exercise, the power; and by s. 6 of the (English) Conveyancing Act, 1882, replaced by the (English) Law of Property Act, 1925, s. 156, a person to whom any power, whether coupled with an interest or not, is given, may by deed disclaim the power, and after disclaimer will not be capable of exercising, or joining in the exercise of the power, though it may be exercised by the other or others of the persons to whom the power was given unless the contrary is expressed in the instrument creating the power. A power given to two or more jointly annexed to an office, e.g., a trust, will survive to the other or others after the death of one of the donees [(English) Trustee Act, 1925, s. 18], but a bare power to two or more by name will not survive (Sugden on Powers; Wms. On Executors). A power intended to be exercised personally and jointly will not survive, sed. qu., if the power is appendant to a joint beneficial interest or estate in the donees.

Wills in execution of powers of appointment by will are to be executed like other wills, and to be valid, although other required solemnities are not observed [(English) Wills Act, 1837, s. 10]; and a deed attested by two witnesses is a valid execution of a power of appointment by deed or by any instrument in writing not testamentary, notwithstanding it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some additional or other form of execution, or attestation or solemnity [(English) Law of Property Amendment Act, 1859, s. 12], reproduced by the Law of Property Act, 1925, s. 159; and equity will aid defective execution if there is good consideration; see Sugden on Powers, and Hals. L.E., tit. 'Powers.'

The (English) Powers of Appointment Act, 1874 ('Lords Selborne's Act'), reproduced by (English) Law of Property Act, 1925, s. 158, provides that appointments under powers shall be valid notwith-standing one or more objects are excluded, in certain cases.


For ascertaining the date for the purpose of the rule against perpetuities, the date from which the period is taken is the date of the instrument conferring the power unless the power is exerciseable by an owner or having a general power equivalent to that of ownership. See Hals. L.E., tit. 'Perpetuities.'

Consult Farwell or Sugden on Powers. See APPOINT-MENT IN EXERCISE OF A POWER; ILLUSORY APPOINTMENTS ACT; POSSIBILITY,