(1) These four cases arise out of the petitions loaded by one Sir Mohammed Yusif and his son, Abdul Rahman against two practicing lawyers D and s for taking action against them far professional misconduct., out of these three petitions, two were filed by Sir Mohammed Yusif, one against d in his capacity as a solicitor and the other against him as an advocate and also against S as an advocate . the third petition was filed by Abdul Rahman against D as a solicitor complaining that the latter was responsible for filing false proceedings under the Administration of Evacree property Act against him and pursuing them with a view to deter him from claiming the amount that D had retained and for which he failed to render accounts to him. The two petitions filed by Sir Mohammed Yusif and Abdul Rahman against D as a solicitor were referred to a committee of the Incorporated Law Society. The latter submitted a report exonerating learned Chief Justice was not satisfied with the report and therefore, referred the matter to Shelat J for further investigation and report. After a full enquiry into the matter. Shelat JH came to the conclusion that D had retained a sum of Rs.3,10,791-2-0 (which will hereinafter referred to as a sum of Rs,. 3 lakhs and odd) and failed to render account in respect of the same to his client, Sir Mohammed Yusif. He however, found that the charge levelled by Abdul Rahman in respect of the evince proceedings was not established., the complaint made against D and S as advocates was referred to the Bar Council. This complaint was comprehensive and also included the charge regarding the evince proceedings,. The matter was referred to a tribunal of the Bar Council and the tribunal took the view that all the changes were established against both the advocates., after the report of the Bar Council was received, the learned Chief Justice has referred the matter to this /Divisional Bench for a final decision., on the basis of the report submitted by Shelat J. the advocate General of Maharashtra has filed a petition, which is disciplinary No.1 of 1961 against D under Rule 72 of the Original Side Rules. That petition also has been referred by the learned Chief Justice to us for a final decision. It will be appropriate to dispose of all these matters by a common judgment in view of the fact that they involve common questions of fact and law. (After proceeding with the facts of the case (Paras 2 to 7 ) his Lordship observed).
Before coming to grips with the principal points in dispute, we will dispose of one or two incidental questions that were urged at the very outset before us.
(2) Rules 64 to 74 in Chapter IV if the Original Side Rules have been recast and new Rules have been substituted in their place. These new Rules came into force his January 1960. Shelat J. had submitted his report before that date and the learned Chief Justice had given his directions to the Advocate General for filling the petition under Rule 72 of the Rules also before that date. Under the old Rules, if the attorney against whom a complaint is made also happened to be advocate, then there would be a double enquiry. First, an enquiry by the Law Society in his capacity as an attorney and the second enquiry by the by the Bar Council in his capacity as an advocate. That is exactly what has happened in the present case. The enquiries in some cases may be protracted, as has happened in the present case. Realising that considerable waste of time would be involved in two proceedings, (as is the case here) each of which has been a prolonged affair, the Rules in Chapter IV have been over hauled and the procedure has now been simplified. The new Rules proscribe that in a case where an attorney also happens to be an advocate, the complaint will be straightway be referred to the Bar Council and the Bar Council will submit its report under S. 12 of the Bar Council Act. Thereafter, the High Court will deal with the same under the provisions of the said Act. In the present case, two enquiries were completed one by the incorporated Law Society and the other by the Bar Council before the coming into operation of the new Rules and directions were given by the learned chief Justice to the advocate General to file his complaint before that date. Although, therefore the petition has actually been filed on 8th February 1961, after the coming into operation of the new Rules the petition would be quite in order and would be governed by the old Rules. After some discussion, Mr. Gupte, who appeared on behalf of D conceded the position and pointed out that his purpose in raising the question was to challenge the right of Sir Mohammed Yusuf or Abdul Rahman to appear through as counsel to represent them in these proceedings. According to Mr. Gupte after the Advocate General has lodged the petition, the proceedings are proceedings between the Advocate General on one side and the attorney and the advocate on the other and the private parties who initiated these proceedings have no locus standi. He argued that the same would be the position under the Bar Council Act. We do not think it necessary to decide this question, because there is no doubt that the Court has discretion to allow a party to be represented through an advocate or a counsel in these proceedings. In view of the complexity of the issues involved in these proceedings and in view of the fact that Sir Mohammed Yusuf and Abdul Rahman are vitally concerned in the result of the case we felt that this was a fit case for exercising our discretion in their favour and permitting them to be represented through a counsel.
[After further proceeding with the case (Paras 9 to 20) his Lordship observed.]
(3) In order to understand the full implications of the change effected in the receipt so as to convert it into an authority cum-receipt document, it is necessary to consider the general question as to whether any special authority was necessary to be given to the lawyers so as to enable them to receive payment. On that point the evidence of Jasjitsingh, the then collector of Thana, throws some light. In answer to questions in Coors-examination, Jasjitsingh says that normally, the payment of compensation money would not be made to any person other than the claimant without an authority. Abdul Rahuman's evidence seems to suggest that the Vakalatnama conferred authority on the lawyers to receive payment by cheque provided a receipt is signed by the client in token of having received the same. We have already pointed out that although no Vakalatnama is traceable in the records of the acquisition proceedings, we must proceed on the footing that Vakalanama or Vakalatnamas must have been given to S or D separately or to both generally, Since no Vakalatnama is traceable, it is not possible to know the terms thereof.
A Vajakatnama may be general. It may specifically confer wide authority upon the lawyer including the authority to compromise and to receive Vakalatnama is generally worded, we are unable to understand why that should not enable the lawyer to accept a cheque on behalf of his client when he is armed with an acknowledgement receipt signed by his client and produces the same before the paying authorities. Jajitsingh's admission is qualified by two cautious words that he had used viz., he speaks of the 'normal' procedure and secondly, he uses the general word 'authority' . A lawyer holding a Vakalatnama can hardly be regarded as a person without authority. This principle may not apply to cash payment, because of the categorical statement made by jasjitsingh in that behalf to which reference will made immediately.
(4) Mr. Guppy drew our attention to the financial rules under Devolution Rule (e) relating to the mode of payment under the Land Acquisition Act. These rules do not govern the present case inasmuch as the acquisition has been made not under the Land Acquisition Act but under the Requisitioned Land (Continuance of Powers) Act. 1947. Mr. Guppy pointed out that the voucher (Ex. 2) in the present case, to which reference will be made hereafter, is headed by the letters 'CC' as is the case with the voucher in appendix V under the Financial Rules. He, therefore, suggested that the practice followed by the paying authorities under the Requisitioned Land (Continuance of Powers) Act must be based on the Financial Rules. No, questions were asked to Jasjitsingh on this point and in the absence of any evidence we are left only to speculate on the matter. Again, there is a departure in the voucher in the present case from the voucher at appendix V. The words 'paid in my presence etc'. appearing at the foot of the form at appendix V are not mentioned in the voucher at Ex. 2. But assuming that the principle underlying the Financial Rules is applicable to the present case, we are unable to understand how these Rules help Mr. Gupte in the argument that he is advancing. Rule 25 under the heading 'General Principles and Rules' for instance, says:
'Every voucher should also bear or have attached to it an acknowledgment of the payment signed by the person by whom or in whose behalf the claim is put forward, and no payment will be made in the absence of the necessary acknowledgement' .
(5) This suggests that an advance acknowledgement of payment must be signed by the person by who or on whose behalf the claim is made. This explains as to why D or S or both asked Abdul Rahman to pass an advance receipt and is therefore, more consistent with Abdul Rahman's case than the case of D and S. Nowhere in the Rules reference is made to a document containing authority and receipt rolled together. Mr. Gupte referred to Rule 2 under the heading 'Procedure of special Officers appointed under the Act'. which says;
'Whenever payment is claimed through a representative whether before or after deposit of the amount awarded, such representative must show legal authority for receiving the compensation on behalf of his principal'.
(6) This has obvious reference to a person claiming representation on the basis of a power of attorney. Incidentally, it may be pointed out that Rule 3 in which from 'CC' is mentioned speaks of payees being more than one. It may be noted that in the present case, although the payees are more than one, only the signature of As appears below the voucher and not either of Jassawalla or Mehta. We are, therefore inclined to the view that neither under the Rules nor under the practice prevailing in the office of the Collector, was it necessary for the pleaders to produce a separate document containing an authority to receive payment. It was enough that an acknowledgement receipt is signed by the party and the same is produced by his pleader. In that case, there should be no difficulty for the paying authorities to hand over the cheque to the pleader of the party. Mr. Gupte than drew our attention to the remarks made in the voucher at Ex. 2 executed by S 'on authority'. The words ' on authority' can be explained on the basis that, as a matter of fact, an authority was actually produced and the words 'on authority' have reference to the document containing the authority, that is to say, Ex.E
[After dealing with evidence (Paras 23 to 40) his Lordship Proceeded.]
(7) It was strongly urged by the Advocate General that Ex. 28 was fabricated during the recess caused by the absence of Mr. Palkhiwalla abroad with a view to create evidence to show that a copy of the recording letter was handed over to Abreo, the Estate Manger. That is how Ex. 28 acquires so much importance in this case. Let, us therefore, turn our attention to that all-important document. It is the case for D and S that Abreo, came along with S to the office of Payne and Co. It is not, however, their purpose of receiving a copy of that important letter. It is suggested that Abreo came there for some work of the trust. It is further suggested that Abreo used to go to the office of Payne and Co. very frequently, if not almost on every day Ex. 28 runs thus:
'Received from Messrs. Payne and Co. copy letter dated 1st April 1950 addressed by them to Mr. S dated this 1st day of April 1950.'
(8) We have already pointed out that no reference was made to Ex. 28 either in the correspondence or in the replies of D and S. Similarly, Abdul Rahman was never confronted with Ex. 28. It is difficult to understand as to why a copy of the letter was handed over to Abreo. It was an extremely important letter and in the ordinary course, we would have expected D to have sent a copy of the letter direct to Abdul Rahman. We go a step further and say that D would not remain contented by sending a copy of the letter to Abdul Rahman but that he would send that copy with a covering letter explaining to him that the recording letter was given to S as per the instruction issued by him. D has admitted that the outward register of the firm Payne and Co. does not contain an entry that any copy of such letter dated 1-4-50 was sent to Sir Mohammed Yusuf. He has tried to offer an explanation for this by saying that the reason for not making an entry in the outward resister is that no covering letter was sent with the copy. According to him, entries are made in the outward resister only if a covering letter is sent along with an enclosure. This is an additional circumstance for casting doubt about the genuineness of Ex. 28. The tribunal of the Bar Council has observed that the receipt at Ex. 28 should have gone to Abdul Rahman when all the papers in the acquisition proceedings were returned to him. According to them the fact that Ex. 28 has been produced by D casts doubt about its genuineness. The tribunal has gone to the length of saying that the custody by D of Ex. 28 is improper. In our view it would be going too far to hold that the custody by D of Ex. 28 is an improper custody. The receipt is not a part of the case papers which are normally handed over to the clients. It is more likely that the advocate may retain documents such as receipts in respect of either money or papers handed back to the client. An advocate may retain and preserve that receipt if the thinks it to be important. In answer to questions in cross-examination however, D does not say that he preserved the receipt because he thought it to be important. On the other hand, he says that at that time, it never occurred to him to that the receipt had any importance. He explains that he retained this receipt as he retained other receipts, this receipt as he retained other receipts. He adds that the receipts, which he retained were preserved for a few years, but he could not say for what particular number of years. He, also says that the file containing Abreo's receipt along with other receipts is in his office. These answers are far from convincing. What is however, important to note is that , it was clearly put to D that the receipt was a got-up document. It is worthwhile to quote D's own words:
'. . . . It is false to say that Mr. Abreo's receipts is a got-up document and that R.. Abreo never passed receipt. . . .'
(9) In spite of this no attempt has been made to examine Abreo. D has admitted that he knew that Abreo had left the services of Abdul Rahuman in the year 1953. It is however, suggested that although Abreo has left Abdul Rahman's services, he still continues to be his tenant. Surely, that does not mean that Abreo is under the influence of Abdul Rahuman. Abreo appears to have a tendency to remain present on all important and crucial occasions. According to D and S, Abreo was present on the 28th March when Ex. E was passed by Abdul Rahman in their favour; that he was also present on the 30th march, when according to them, payment was made by S and D to Abdul Rahman and that he again remained present on the 1st April 1950 when a copy of the recording letter was given to him and we will show presently that he was also present on the 4th April 1950 for receiving the copy of the bill of payne and Co. Which has also ask important bearing in this case. Obviously, therefore, Abreo is an extremely important witness to prove the case of D and S, and yet D and S have not chosen to examine him. At any rate, when it was clearly put to D that Ex. 28 was fabricated. It was the clear duty of D to produce Abreo as a witness to rebut the charge and prove his handwriting. A novel procedure has been followed for proving the hand writing of Abreo. In his re-examination, Abdul Rahman man produced a bunch of copies of letters with the initials of Abreo containing his endorsement 'true copy' Abdul Rahman explained that as Abreo was not working properly, he asked him to resign. Abreo resigned in 1953 and since then their relations were bad. Mr. Palkhiwalla, on behalf of D, requested that the bunch of letters produced by Abdul Rahman in his re-examination may be marked as an exhibit Abdul Rahman was further cross-examined by Mr. Palkhiwalla a number of points, and Yet Ex.28 was not shown to Abdul Rahman. Nor was any question asked to him in regard to the same. The responsibility of indentifying the handwriting of Abreo has been taken by D upon himself. This is a very queer way of proving such an important document as Ex. 28 on the question of proof of the signature of Abreo on Ex. 28 also D's case has gone on developing from stage to stage. In his examination in chief before the Sub-committee D stated:
'. . . . On the same day, a copy of this letter was handed over to Mr. Abreo the Chief Estate Manger of the petitioner. I produce the receipt signed by Mr. Abreo Receipt put in and marked Ex. 28.'
(10) In answer to questions in cross-examination D stated:
'I have already said that my short hand writer gave a copy of the letter and took his (Abreo's) . . . . . . .signature on the receipt. I am very glad that he did so. There having been received by Abreo, because there is no covering letter sent to Sir Mohmmand Yusuf along with it.'
(11) It us clear from these answers that all that D tried to prove was to identify the signature of Abreo. He did not want to go so far as to say that Abreo put his signature in his (D's) presence. In his examination-in-chief before the Bar Council Tribunal, D has improved upon his version and has tried to state that Abreo put his signature below Ex. 28 in his presence on 1-4-50. This is what D says:
'. . . . .Ex. 28 is the receipt signed by Mr. Abreo in my presence on 1-4-1950 in my office after he was given the copy letter dated 1st April 1950 addressed by us to Mr. S. Ex. 27/1 is the original of the copy letter which I handed over to Mr. Abreo in respect of which he passed the receipt, Ex. 28'.
(12) Mr. Peerbhoy contended that the entire document (Ex. 28) could not be admitted in evidence inasmuch as D had only proved the signature below the document. The Tribunal gave a ruling stating that in their opinion proof of the signature was not proof of the contents of the documents, which bears the signature. They added that 'it would be open to Mr. Peerbhoy to contend that despite the admission of the document on record what was proved was that the document bore the signature of Abreo and not that their contents were true'. In their report, the tribunal have stated that proof of the signature does not amount to proof of the contents of Ex. 28 nor did it mean that even if Abreo had received that copy letter. He showed it to Abdul Rahman at any time . According to the Bar Council Tribunal, the evidentiary value of Ex. 28 even if it is held proved was almost nil. As pointed out above the mode of proving Ex. 28 that was initially undertaken by D was to identify the signature of Abreo as a person who was acquainted with Abreo's hand writing (vide S 47 of the Indian Evidence Act) The ruling given by the tribunal may hod good so far as the question of the proof of the contents of Ex. 28 is concerned. (we will discuss this question presently at some length), if the only mode of proof adopted by D was to identify the signature of Abreo. It certainly does not apply to the second mode of proof which D sought to adopt, for the first time. In his further examination-in-chief before the Bar Council Tribunal by saying that Abreo put his signature below Ex. 28 in his presence, for this amounts to proof of the execution of the document. We are not, however, disposed to accept the improved version of D, when he tried to say for the first time before the Tribunal, that he had seen Abreo putting his signature below Ex. 28. The mode of proof that D adopted in the first instance cell within the purview of section 47 of the Evidence Act. that is to say it amounted to his opinion about the signature ;of Abreo on the basis of his acquaintance with the letters hand-writing. The Bar Council Tribunal had probably in their mind the decision of Bhagwati J. (as he then was) in Madholal Sindhu v. Asian Assurance Co., 56 Bom LR 147:AIR 1954 Bom 305. The advocate General has strongly relied upon this judgment and contended that proof of the signature below the document does not amount to proof of the contents of the document. In that case an attempt was made to prove through the sub-accountant in the head office of the Bank several documents consisting of letters and documents executed by Jamnadas in favour of the bank and also the resolutions of the executive committee of the bank and the letters addressed by the bank to Nissim by proving the handwriting in which all the documents purported to have been written. Bhagwati J. characterised this attempt 'as an attempt to prove the handwriting of these various documents without calling in evidence the persons who had written the same or who were acquainted with the contents thereof so that they might not be subjected to cross-examination at the hands of the counsel for the official Assignee. The witnesses who could have proved those documents and the contents thereof would have been Deshpande, the managing director of the bank, Paranjape the Secretary of the bank, Jamnadas and Nissim'. Bhagwati J. referred to section 67 of the Evidence Act and observed:
'Section 67 of the Indian Evidence Act only permits the proof of the signature or handwriting of the person signing or writing the document to be given and considers it to be sufficient in those cases where the issue between the parties is whether a document was signed or written wholly or in part by that person. The section does not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document as was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubt the proof in so far as it was sought to be given in the evidence could have established that those documents were signed or written in the handwriting of Deshpande, Paranjape or Jamnadas: but the matter could rest there and would carry the plaintiff no further.'
(12) From the facts as they appear from the judgment, it appears to us that the evidence given by Deshmukh in that the evidence given by Deshmukh in that case amounted to proving the handwriting of the persons concerned under section 47 of the Evidence Act. We are inclined to the view that the proof of the handwriting by a person acquainted with that handwriting and, therefore, amounted to opinion evidence under section 47 of the Evidence Act. What is important to note is that Bhagwati J. has gone to the length of holding that proof of the signature or the handwriting under section 67 of the Evidence Act does not amount to proof of the contents of that document.
(13) Mr. Gupte strongly urged that the view taken by Bhagwati J. is no longer good law, because of certain observations of the Supreme Court in Mobark Ali v. state of Bombay, : 1957CriLJ1346 . Before discussing this argument, we will do well to note the wording of the two sections, which we are considering viz., sections 47 and 67 of the Evidence Act. S 47 of the Act runs thus:
'When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact'.
(14) Section 67 if the said Act runs thus:
'If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting'.
(15) Section 67 does not prescribe any particular mode of proof. It lays down no new rule whatever as to the kind of proof that must be given. The section merely states with reference to the deeds what is the universal rule in all cases viz., that a person who makes an allegation must prove it./ the question that arose before the supreme Court in Mubarik Ali's case was, whether the authorship of the document can be proved without adducing evidence in proof of the signature of the person concerned. Ion that case, the prosecution relied upon a number of letters and these letters fell under two categories: (1) Letters from the appellant (accused ) either to Jassawalla or to the complainant and (2) Letters to the appellant from Jassawalla or the complainant. Most of the letters from the appellant relied upon bore what purported to be his signatures. A few of them were admitted by the appellant. There were also a few letters without signatures. the complainant and Jassawalla spoke to the signatures on the other letters. The Objection raised on behalf of the appellant was that neither of them had actually seen the appellant writing any of the letters nor were they shown to have such intimate acquaintance with his correspondence as to enable them to speak to the genuineness of these signatures. The trial Judges as well as the learned Judges of the High Court had found that there were sufficient number of admitted or proved letters which might well enable Jassawalla and the complainant to identify the signature of the appellant in the disputed letters. They also laid stress substantially on the contents of the various letters, in the context of the other letters and telegrams to which they purported to be replies and which formed the chain of correspondence as indicating the genuineness of the disputed letters. The learned counsel objected to this approach on a question of proof. Their lordships of the Supreme Court observed:
'We are, however, unable to see any objection. The proof of the authorship of the document and is proof of a fact like that of any other fact the evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature by one of the modes provided in Ss 45 and 47 of the Indian Evidence Act. it may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship. In an appropriate case, the Court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and thus to determine its authorship. We are unable, therefore, to say that the approach adopted by the Courts below in arriving at the conclusion that the letters are genuine is open to any serious legal objection. The question, if any can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived as. that, however, is a matter which we cannot permit to be canvassed before us'.
(16) We are unable to understand how the above observations in any way amount to modification of the view taken by Bhawati J. in Madhola's case nor do we appreciate how they help Mr.Gupte in particular, relied upon the following sentences occurring in the above passage:
'The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct evidence or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature, by one of the modes provided in sections 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. . . . . . . . . . '.
(17) The issue under consideration in that case was whether the internal evidence afforded by the contents of the document amounted to the proof of the authorship of the document and, therefore, their Lordships held that the evidence of the recipient of the document would be material to establish the authorship of the document. This was the real decision that was given by the Supreme Court in Mubarik Ali's case. Even the general observations viz, 'It (proof) may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature by one of the modes provided in sections 45 and 47 of the Indian Evidence Act' are not of much help to Mr. Gupte. As pointed out above, at the initial stage D tried to resort to the mode of proving spoken of in section, 47 of the Evidence Act but at a latter stage, shifted the ground and tried to five direct evidence of the execution of the document. It is true that proof of the signature or of the handwriting by one acquainted with the handwriting is a recognised mode of proof under section 47 of the Evidence Act. Therefore, is so far as D says that he recognised the signature of Abreo, the latter's signature can be taken to have been proved under section 47 of the Act. but the proof of the signature on the basis of opinion evidence, however, is not proof of the handwriting of the document. Mr. Gupte pointed out that the body of the document as Ex. 28 is typewritten. Therefore, there is no question of proving the writing of that document. At the same time, it must not be forgotten that the figure and letters '1st' are written in hand and in pencil. D has not attempted to identify the figure and letters. The whole document, therefore, cannot be said to have been even formally proved. Apart from this aspect of the matter, it is clear to us that the decision in Mubarik Ali's case does not affect the decision given by Bhagwati J. viz., that the proof of the document does not amount to proof of the contents thereof. The only question that arose in Mubarik Ali's case related to the formal proof of the document and, therefore, their Lordships of the Supreme Court held that the letters and telegrams could be said to have been formally proved by reason of internal evidence provided by the documents and the positive evidence given by the recipient of those documents. Once the letters and telegrams were held proved, the further question about the proof of the contents did not arise in Mubarik Ali's case, because himself and the statements contained therein would amount to his admissions. In our view, therefore, the decision of Bhagwati J. is still good law.
(18) The reason on which the decision of Bhagwati J. is based is not far to seek. The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at nought the well recognised rule that hearsay evidence cannot be admitted. This question has been discussed by Halsbury at paragraph 533 at p.294 (Halsbury's Law of England, 3rd Edition, Vol.15) under the heading 'Hearsay' says Halsbury:
'. . . . . . .Statements in documents may also be hearsay. So, if A had taken counsel's opinion before acting, the contents of the opinion would be admissible for the same purpose, but not to prove the truth of any statement of fact therein'
(19) In paragraph (534) Halsbury has discussed the reasons for rejection of hearsay evidence and says:
'The reasons advanced for the rejection of hearsay are numerous, amount them being the irresponsibility of the original declaring, the depreciation of truth in the process of repetition, the opportunities for fraud which its admission would offer and the waste of time involved in listening to idle rumour.
The two principal objections, however, appear to be the lack of an oath administered to the originator of the statement, and the absence of opportunity to cross-examine the absence of opportunity to cross-examine him'.
(20) The Advocate General drew our attention to a decision of House of Lords in Marioa Sturla v. Filippo Freccia, (1879) 5 A.C. 623. In that case, the report of a committee appointed by a public department in a foreign state was admitted in evidence as a public document. It was, however, held that it was not admissible as evidence of all the facts stated therein. In that case the facts were: The document in question, a report of certain persons called the Ginunta di Marina at Genoa, was sought to be put in evidence for the purpose of proving that person who was formerly consul for the Genoese Republic in London, and the succession to whose daughter, Mrs. Brown, was in question, was a native of Quarto near Genoa and at the time that report was made, aged about forty-five years. The document was tendered for that purpose and for that purpose only.
(21) It was conceded that the report was an authentic public document of the Genoese Government. the statements, however, contained in the report were not based on the evidence of any of the relatives of the consul at Genoa. The information contained therein did not appear to have been received from any member of Mangini's family. One of the well-recognised exceptions under the English Law of Evidence to the reception of hearsay evidence is the evidence relating to pedigree. The only question, which their Lordships of the House of Lords were considering was, whether the contents of the report fell within the purview of the above exception and their Lordships held that it did not, because the statements contained in the report were not bases on the evidence given before the dispute started by any of the members of the deceased's family. We are not concerned with that part of the decision of the House of Lords in the present case. The point to be noted is that the statements contained in the report were treated as hearsay and since they did not fall within the well-recognised exceptions, they were excluded from evidence. To conclude this part of the discussion, we hold, in the first place, that what has been formally proved is the signature of Abrea and not the writing of the body of the document at Ex.28 and secondly, that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document was Abrea (After further dealing with the case (Paras 43 and 44) His Lordship proceeded).
(22) Strong reliance was placed on the entry dated 30-3-1950 in the bill (Ex 32) of Payne and Co-regarding acquisition proceedings. We have referred to some of the entries of his bill while discussing the question as to what part D had played in the acquisition proceedings and also the question as to what transpired between 24th and 28th March 1950 and whether any authority was given to D and/or S to receive the compensation money from the ?Collector. Thana. It is the case for D that this bill was sent to Abdul Rahman on 3-5-50. Ex.30 ios an entry in the outward register of Payne and Co., which shows that the bill was despatched by hand to Sir Mohammed Yusuf on 3-5-5-. Ex.32 is a letter purporting to have been written and signed by Abrea on 4th May 1940, which shows that Abrea on 4th May and left the letter on the table. The letter further stated that Abdul Rahman would be coming it settle the bill. It is further the case for D that Abdul Rahman went to the office of D the same day and settled the bill and paid as sum of Rs.2,200/- in full satisfaction of the same,. the bill was for a total sum of Rs.3,000/- but, at the instance of Abdul Rahman, the amount was reduced by Daji to Rs,2,200/- and Abdul Rahman paid this amount in cash. According to Abdul Rahman, he had not received the copy of the bill at any time nor did he settle the bill and paid as sum of Rs.2,200 in cash in full satisfaction of the same., he asked for a copy of the bill in 1956 and a copy was supplied to him. the question as to whether Abdul Rahman actually received the bill on the 3rd or the 4th May 1950, as alleged by D, is of considerable significance in the case, because if Abdul Rahman had received the bill in the month of May 1950, then his attention would be attracted to the entry dated 30th March 1950 therein. The entry dated 30th March 1950 clearly states that S handed over to Abdul Rahman the cheque and cash for the amount of, compensation payable to him on the 30th March 1950. Since Abdul Rahman did not raise any protest against this entry and the statement contained in that entry regarding the payment of compensation money, the entry will have to be accepted as true. We will consider the question as to whether it has been proved that the bill (Es 32) was sent to Abdul Rahman on the 3rd May 1950 and received by him in due course either on the 3rd or the 4th May 1950 presently. For the time being, we are considering the limited question as to whether the statements contained in the bill and in particular the statements contained in the entry dated 30th March 1950 are admissible in evidence, and of so, what is their evidentiary value. Now, the bill is evidently prepared from the diary maintained by payne and co. We are told that the diary was lost along with some other documents in the course of a theft, which occurred sometime in the year 1953. The entries in the diary amount to a contemporaneous record maintained in the ordinary course of business and, therefore, may be admissible in evidence under section 32 of the Evidence Act. it may also become admissible under section 157 of the said Act as corroboration to the evidence of D. The entries in the bill are made on the basis of the entries contained in the diary. The statements contained in the bill, therefore, are neither admissible under S.32 nor under S. 157 of the Evidence Act. It is equally clear that the entries in the bill could be easily manipulated at a latter stage. We will concentrate our Attention on the entry dated 309th March 1950. The entry runs thus:
'Later on, attending Mr. Abdul Rahman with Mr. S when Mr. S handed over to Mr. Abdul Rahman the cheque and cash for the amount of compensation payable to you and conferring and discussing the matter.'
(23) The second item in the said entry is 'Writing Mr. S.' It is significant to note that the letters 'Dy' do not appear below either of these tow items in the entry dated 30-3-50. It was contended on behalf of D and S that is a pure omission and no significance attaches to that omission. An attempt was made to show that below some other entries in the bill, the letters 'Dy' do not appear. It was also pointed out that in respect of the bill for evacuee proceedings (Ex. 41) to which reference will be made hereafter none of the entries makes any mention, whatsoever, of the diary. It is possible that this may be case of mere omission. The fact, however, remains that the original diary is not available and it is not possible to ascertain as to whether there was an entry in the diary corresponding to the entry in the bill (Ex. 32) under the date 30-3-1950. It is significant that the omission should occur in respect of a vital entry. Apart from these circumstances, which raise strong suspicion against the genuineness of the entry dated 30-3-50, it is clear to our mind that the statements contained in the entry dated 30-3-50 are neither admissible in evidence nor have any probative value, even if admitted in evidence. The entries in the bill may be admissible for the limited purpose of showing as to what work was done and what fees were charges for a particular piece of work. The entries would not be admissible for showing the truth of the contents of those entries.
[ After further dealing with the case (Paras 46 to 54) His Lordship proceeded].
(24) We will now consider the main argument advanced on behalf of D and S viz., that the subsequent conduct of Abdul Rahman militates against his case that D and S did not render accounts in respect of the amount received by them in cash from the Collector's office. It is pointed out that the petition was filed nearly six years after the alleged retention of the money by D and S. It was contended that it is impossible that anybody would keep quiet for such a long period, particularly, when the amount involved was a huge one. It was also urged that unless Abdul Rahman gives satisfactory explanation about the lapse of such a long time, no credence could be given to his story. It was faintly suggested that the claim of Abdul Rahman would be barred by limitation and it was argued that nobody with even a modicum of common-sense would wait for so long a time till his claim is time-barred. The question of limitation does not fall to be considered in these proceedings nor was it argued before us for the simple reason that this is not a proceedings nor was it argued before us for the simple reason that this is not a proceeding for the recovery of the money. This is a proceeding for taking disciplinary action against the two advocates, one of whom also happens to be a solicitor. The question involved is a question of the honour and integrity of the legal profession. Even, if therefore, the client's claim is barred by limitation, the jurisdiction of the Court to pronounce its verdict upon the professional misconduct of its officers will not in any way be ousted. In Corduroy on Solicitors, Fourth Edition, 1935, under the heading 'Delay' at p.236, it was observed:
'The Court has interfered after the lapse of one, five and eleven years from the transaction, and also on the application of a client who had known the facts for two years and negotiated for a compromise.'
(25) Once the improper conduct is established, the question of lapse of time is entirely immaterial. We do not, therefore, feel called upon to express any opinion on the question as to whether Abdul Rahman's claim is barred by limitation. We may, however, point out that at least in the case of D, in his capacity as a solicitor, it is possible to hold that his capacity is not that of an agent but that the relationship between him and Abdul Rahman is of a fiduciary character, in which case, instead of Article 89, Article 120 of the Indian Limitation Act would apply, and limitation will begin to run from, the accrual of the cause of action, that is, refusal to pay the money. The question of allowing lapse of time is not, therefore a question of limitation, but really a question, which affects the probabilities of the case one way or the other. In order to explain the delay, Abdul Rahman has put forward the following circumstances, which resulted in his making a belated demand. He says that on the 3rd April 1950. D told him that after adjusting the bills of S and Payne and Co. the balance would be returned to him. It is further his case that D never submitted his bills in regard to the Acquistion proceedings and that S submitted his bills in about the month of February 1951. That is the first reason assigned by Abdul Rahman in not insisting upon the payment of the money till the middle of 1951. The second reason assigned by him is that D got the evacuee proceedings started against him and these proceedings terminated in September 1951. Even after the termination of these proceedings, he was kept under the belief by D that the said proceedings were kept in abeyance and, therefore could be revived at any time. Abdul Rahman adds that after the Administration of Evacuee Property Act came to be repealed in 1955, he was emboldened to consult Nagindas and Co. We will set out in greater the entire case of Abdul Rahman in this connection at the time of dealing with the evacuee proceedings, which call for a detailed discussion. For the time being, we will deal with the period from 1-4-50 to June 1951, When the evacuee proceedings were started. Abdul Rahman received proceedings were started. Abdul Rahman received the cheque for Rs. 14 lakhs on 1-4-1950 and was told by D that he should see him again on the 3rd April 1950 for receiving of the cash amount. According to Abdul Rahman D told him on the 3rd April 1950 that after disbursing the amount towards the bills of S and Payne and Co; he would return the balance to Abdul Rahman. Mr. Gupte attacked this part of Abdul Rahman's case and argued that it is difficult to believe Abdul Rahman when he says that he accepted the excuse put forward by D in that behalf. He pointed out that the amounts of the bills would not exceed that the amounts of the bills would not exceed and have not exceeded, Rs. 40,000 in all. It was therefore, wholly unnecessary to allow D to retain a large sum of Rs. 3 lakhs and odd on the excuse that bills were to be adjusted. He also pointed out that Abdul Rahman, on his own showing, was reluctant to sign a blank receipt. He also pointed out that Abdul Rahman, on his own admission, expressed a doubt as to why D secured cash amount, when he had given him no authority to accept any cash payment. Mr. Gupte drew our attention to the entry in the account books of Abdul Rahman dated 3rd April 1950, which showed that a sum of Rs. 3 lakhs and odd was shown as being with S. This is inconsistent with his case in the inquiry that D told him that he had the amount and that he would return the same after adjusting the bills. He further contended that Abdul Rahman would not have allowed this amount to lie with D and in any case, would have asked for a receipt from him. In our view, there is no substance in this line of reasoning. We have already pointed out that the entries in the account books of Abdul Rahman were not made on the 3rd April 1950 but sometime later. Further more, as Padaki has explained, the entries were made in accordance with the instructions of D. Abdul Rahman was not very particular in putting on record that D was accountable for the money. He was, more or less, indifferent to the entry made in the account books, which showed that it was S who was accountable for the money. So far as Abdul Rahman was concerned, he was all along under the impression that the compensation amount would be received by both the pleaders and D was primarily answerable to him for the amount. It was not, therefore, necessary for him to insist upon D passing a receipt for the amount allowed to lie with him. It is true that Abdul Rahman was somewhat reluctant to sign a blank receipt. But, the fact remains that he ultimately put his signature below a blank receipt. He has assigned good reason as to why he agreed to put his signature below the blank receipt. It is also true that he had asked a question as to why some amount was accepted in cash. It must however, be remembered that D offered a plausible explanation, which satisfied Abdul Rahman. Abdul Rahman, therefore, had no reason to be suspicious about D. There was, therefore, no occasion for him to insist upon D to pass a receipt for the amount in his favour, particularly when, according to him, D was legally and morally answerable to render accounts for the sums received by him from the Collector. It is true that amounts under the bills of S as well as the amounts under the outstanding bills of Payne and co. did not exceed Rs. 40,000. But, the amount of Rs. 40,000 is not a small sum and when a family solicitor tells his client that he would repay the balance after adjusting the bills, there is nothing extra-ordinary in the client acquiescing in such a position. Mr. Gupte drew our attention to an admission made by Abdul Rahman in his cross-examination before the Bar Council to the following effect:
'. . . . . . I must have asked Mr. D ten or twenty times about the bills and the payment of the balance. Mr. D used to tell me that it would take some time to prepare the bills and that he would take some time to prepare the bills and that he would submit the bills when they would be ready.
(26) I did not ask Mr. D to pay me any particular amount out of this sum of Rs. 3 lakhs and odd pending the completion of bills, as I was not in hurry to receive any amount and as I trusted Messrs. Payne and Co., who have acted as my solicitors for over 40 years.
(27) Mr. Gupte contended that if Abdul Rahman felt that the need of making demand ten or twenty times, it would not be proper for us to accept the statement that he trusted Payne and Co. or D. According to Mr. Gupte, this demand betrays distrust on the part of Abdul Rahman in the bona fides of D. In our view, there is nothing unnatural in the conduct of Abdul Rahman, because there was no fear of his losing the money. On the question as to on whom Abdul Rahman depended for rendering accounts to him. Some discrepancies in his evidence were pointed out to us. Mr. Gupte pointed out that in the first letter written by Nagindas Hussainali to S (Ex. 59 collectively) on 11-6-56 S was asked to render accounts. He also pointed out that it was stated in that letter that S was repeatedly asked through D to render accounts. It was contended that this is inconsistent with the agreement supposed to have been arrived at between Abdul Rahman and D on the 3rd April 1950. Mr. Gupte drew our attention to the admission made by Abdul Rahman to the effect: 'Our Client (Abdul Rahman) says that in spite of repeated requests through Mr. E. A. D you have failed and neglected to account for the balance of the amount received by you'. Abdul Rahman has explained this admission by saying in his cross-examination before the Bar Council Tribunal:
'. . . . What was meant by this was that, I was asking Mr. D and Mr. D was to ask Mr. S to make the payment. . . .'
(28) The answer to the point raised by Mr. Gupte is not to be found in the explanation offered by Abdul Rahman. The answer is to be found in the circumstance that from the information gathered by Nagindas from the record that was available in the Collector's office, it came to the notice of Abdul Rahman and Nagindas that S had received the money and had passed a receipt to the Collector in token thereof. It is for that reason that the first letter (D/- 11-6-56) was directed to S and S was called upon to render accounts. It was not possible for Navingdas to seek to involve D at that Stage. Even the statement that demands were made on S through D conflicts with the stand taken on behalf of D and S, according to whom, payment was made to Abdul Rahman on the 30th March 1950. Mr. Gupte taken relied upon the admission made by Padaki to the effect that D told him (Padaki) that the sum of Rs. 3 lakhs and odd was with S. Mr. Gupte contended that if this is true, Padaki would tell Abdul Rahman about it and then Abdul Rahman would immediately realise that what was told to him on the 3rd April 1950 by was not true. In our view, the case cannot be decided on a small admission here and a small admission there. Parties were giving evidence after a lapse of over eight years and some allowance must be made to forgetfulness and lapse of memory. The case must be judged on the broad probabilities thereof and the preponderance of probabilities is in favour of the view that D and S did not account for the moneys.
[ Then further dealing with the case (Paras 56 and 59) His Lordship proceeded]
(29) We may refer to the provisions of S.33 of the Administration of Evacuee Property Act, which relate to penalty for false declaration etc. Sub-Section (ii) of S. 33 is relevant and runs thus:
'Any person who furnishes any return, account or information which is material to any of the purposes of this Act and which is false or which the either knows or has reason to believe to be false or does not believe to be true, shall be punishable with imprisonment for a term which ,may extend to three years, or with fine or with both.'
(30) The provision of S. 33 of the Act are much wider than the provisions of S. 193 I.P.C. (perjury). It is also to be noted that penalty would be levied not by a judicial tribunal but by an administrative body. That will show what danger Abdul Rahman stood when he made the statement before the Deputy Custodian, Evacuee Property on the 29th August 1951, that he had not transferred any funds to Pakistan. This discussion will explain as to why D has been along very keen to get rid of the evacuee papers and to repudiate the genuineness of the document case for opinion (Ex. K.). D's intention is obvious and that is to have a whip hand against Abdul Rahman, so that he would be made to submit to his desires by a threat to exploit the statement made by him before the Deputy Custodian of Evacuee Property.
[ Then after dealing with the case regarding evacuee proceedings (Paras 61 to 73) His Lordship proceeded]
(31) On a review of the entire evidence in the case, we are inclined to agree with the conclusions reached by the Bar Council Tribunal on all the points except one viz., where the Tribunal has remarked that the letter (Ex. 27) recording payment by D to S amounted to a release given by one joint promise to another joint promiser. The analogy is inappropriate both metaphorically and legally. We have, of course, reached the conclusions by following different routes and by embarking upon a more elaborate discussion. We, therefore, hold that both D and S have fabricated the document (Ex. E), the authority-cum-receipt, that they accepted cash payment with the object of embezzling the same, if possible in future; that the prepared false evidence in the shape of Ex. 27 to show that the amount was repaid; that D first of all tried to persuade Abdul Rahman to allow him to keep the moneys till the accounts were adjusted; that thereafter he utilised the evacuee proceedings to strike terror in the heart of Abdul Rahman and to keep a stronghold to him so that he may not demand the return of the money, that he extorted a sum of Rs. 15,000 from Abdul Rahman on a representation that the same would be paid to the informant for hushing up the evacuee enquiry; that after the end of evacuee proceedings, D tried to keep the compensation money as a reward for saving the family of Sir Mohammed Yusuf from ruin as a result of the evacuee proceedings and that at the same time, D impressed upon the mind of Abdul Rahman that the proceedings were kept in abeyance and, therefore, they could be revived at any time thereafter. So far as the actual conduct of these proceedings is concerned, D has tried to create false evidence in the shape of the tape-recorded conversation between him and Padaki and S, in his turn, with the help of Suleman Siddicki has tried to produce a fabricated copy purporting to be a copy of the statement submitted to the Income Tax Department by Abdul Rahman. These acts by themselves will constitute professional misconduct. The entire conduct of the case reveals D in his true colours. D has shown himself as an extremely cunning man. He has tried his level best to cloud the issues by raising a smoke-screen of numerous bits of evidence and documents. We had to wade through a stream of small and unconnected documents and we found considerable difficulty in steering our way clear out of the accumulated mass of confusing evidence, D appeared to be counting upon clouding the vision of the investigator. The length and elaborateness of a judgment is largely due to the introduction of a mass of relevant and irrelevant material into the case by D and its uncritical reception by the Sub-committee of the Incorporated Law Society. We experienced great difficulties in sifting the chaff from the grain and but for the valuable assistance rendered to us by the Advocate General and Mr. Gupte, we would have found ourselves in the very unenviable position of sailing a rough sea without the help of rudder and compass. We would have very much wished to have been able to write a shorter judgment. But, in view of the complexities of the case and the seriousness of the issues involved in it and with a view to be fair to the laborious arguments advanced before us on both the sides we felt it our duty to do full justice to the points that were urged before us. That accounts of the imposing length of the judgment. We cannot conclude without paying a compliment to the Advocate General for his clear and eloquent arguments and also to Mr. Gupte for having made an admirable job out of a very difficult and, we may add, an immoral case on behalf of his client.
(32) We read out the findings arrived at by us to the Advocate General and the Advocates appearing before us on behalf of the parties. We heard the Advocates on the question of the final order to be passed on the basis of the findings arrived at by us and also about the order to be passed regarding costs. So far as the final order, to be passed on the basis of the findings against D and S, is concerned, the only appropriate order that we can pass is to remove them from practice and strike their names off the roll. So far as D is concerned, his name will be struck off from the rolls of both the Solicitors as well as the Advocates and so far as S is concerned, his name will be struck off from the roll of the Advocates. The charges against them are of a serious character and we have no adequate words to condemn the behaviors of these two Advocates he is a Solicitor of about 33 years standing. He has enjoyed the confidence of Sir Mohammed Yusuf and his family M/s. Payne and Co. have been the family solicitors of Sir Mohammed Yusuf for a long time. It is clear that D has abused the confidence placed him by Sir Mohammed Yusuf and his son and attorney, Abdul Rahman, D has brought disgrace to the noble profession to which he belongs. He has trampled down the high traditions of the Solicitors' profession. The only adequate punishment that can be awarded to him is to remove him from practice completely. We have also pointed out in the course of our judgment that D has tried to adduce fabricated evidence with a view to defeat the applications made by Sir Mohammed Yusuf and Abdul Rahman. S also deserves similar punishment. He too has tired to adduce fabricated evidence before the Bar Council Tribunal. Both of them, in our view, deserve the penalty that we have imposed on them and nothing short of removing them permanently from practice would have met the ends of justice. D to surrender his Certificate as Solicitor and also his Sanad as an Advocate and S as an Advocate.
(33) Coming to the question of cots, we were told that the hearing before the Incorporated Law Society occupied as many as 72 hours. The hearing before Shelat J. occupied 60 hours and the hearing before the Bar Council occupied 75 hours. These have been protracted proceedings and highly complicated issues were involved in the course of these enquiries. So far as the preliminary enquiries before the Incorporated Law Society, before Shelat J. and before the Bar Council Tribunal are concerned, the Advocate General does not come into the picture. The only question is as to whether the petitioner should be awarded costs of these enquiries and if so, on what scale. In view of the complicated character of the enquiry, we are inclined to the view that costs should be awarded to the petitioner on the basis of taxed costs on a long cause scale, with one counsel on the original side. The instruction charges will be separate and they will be at the rate of Rs. 1,500 for each of these enquiries. As regards the proceedings before us, we direct that costs should be allowed on the same basis to the Advocate General i.e., taxed costs on a long scale, with one counsel on the original side. As regards instruction charges of the Advocate General, we award a quantified sum of Rs. 1,500 for these proceedings. The Government Pleader is awarded a lump sum of Rs. 100 towards his costs in the proceedings before us. Mr. Peerbhoy requested that te petitioner should be allowed his separate costs in the present proceedings. We are unable to accede to this request. It is true that the petitioner has helped the Advocate General in presenting the case before us. It is also true that so far as the application relating t the evacuee proceedings is concerned, it was Mr. Peerbhoy, who mainly argued the matter before us. We feel that the ends of justice would be met, if we award costs to the petitioner to the extent of one-fifth of the cots to be awarded to the Advocate General. There now remains the question as to who should be bear the burden of costs and in what proportion. S does not come into the picture so far as the proceedings before the Incorporated Law Society and Shelat J. are concerned. All the costs will therefore, have to be borne by D in those proceedings. Both D and S have appeared and contested the proceedings before the Bar Council Tribunal as also before this Court. Taking into account all the circumstances that have transpired in this case, we are inclined to the view that the burden of costs would be borne by S and D in the proportion of 1:4 in these proceedings and in the proceedings before the Bar Council Tribunal. A notice was issued to the Bar Council and the Bar Council has appeared before us through Mr. Ramnath Shivlal and he pressed for the costs. We do not think that the Bar Council is entitled to any costs in these proceedings. In the same way, the Incorporated Law Society has been represented before us by its President, Mr. Gagrat, Mr. Gagrat, however, has not pressed for the costs of the Society. All that the Society and the Bar Council Tribunal have done before us is that they have supported the findings arrived at by the Bar Council Tribunal. Neither of them, therefore, is entitled to any costs.
(34) Mr. Gupte, on behalf of D, and Mr. Kotwal, on behalf of S. requested that the order for removing the solicitor and the Advocate from practice may be stayed for a period of about two weeks. We are unable to accede to this request.
(35) Order accordingly.