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Ayeshabai Vs. Ahmed Essa - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSuit No. 428 of 1907 and Suit No. 517 of 1908
Judge
Reported in(1911)13BOMLR670
AppellantAyeshabai;josIn Mahomed
RespondentAhmed Essa;ahmed BIn Essa
Excerpt:
.....please inform us precisely what you want us to do. have acted in this matter otherwise than with a perfect propriety, and i do not consider that they can be held to have discharged themselves within the meaning of the decisions relied upon by the applicant. the only calculation they can make is a rough calculation that their costs may come to anything like rs. that appears to me to be a perfectly reasonable proposal on the part of messrs......ahmed bin essa khalifa has taken out a summons in suit no. 423 of 1907 against the firm of messrs. thakurdas & co. calling upon them to show cause why they should not forthwith give a full free and complete inspection of certain papers and documents relevant to that suit in the respondents' possession and why the applicant should not be allowed to take full and complete copies of the said documents. he has taken out a similar summons against messrs. thakurdas & co. in suit 517 of 1908.2. the applicant alleges that, after the death of his father essa bin khalifa, messrs. thakurdas & co., who had been his father's solicitors, continued to act as the solicitors of himself and his two brothers in the litigation that was then pending between his father and one fatmabibi, and they also.....
Judgment:

Robertson, J.

1. In this case the applicant Ahmed bin Essa Khalifa has taken out a summons in suit No. 423 of 1907 against the firm of Messrs. Thakurdas & Co. calling upon them to show cause why they should not forthwith give a full free and complete inspection of certain papers and documents relevant to that suit in the respondents' possession and why the applicant should not be allowed to take full and complete copies of the said documents. He has taken out a similar summons against Messrs. Thakurdas & Co. in suit 517 of 1908.

2. The applicant alleges that, after the death of his father Essa bin Khalifa, Messrs. Thakurdas & Co., who had been his father's solicitors, continued to act as the solicitors of himself and his two brothers in the litigation that was then pending between his father and one Fatmabibi, and they also acted as solicitors of himself and his brothers in certain other actions, which were filed after the death of his father.

3. Sometime in November 1909 the applicant became on bad terms with his brother and nephew and it became impossible for Messrs. Thakurdas & Co. to continue to act for all the three.

4. In suit 517 (which was originally filed by the applicant's brother Mahomed for the administration of the estate of Essa bin Khalifa) on the death of Mahomed his son Jassen was made plaintiff as his father's representative. In suit 423 Jassen was similarly substituted as a party in the place of his deceased father.

5. The question that arises in the summons is whether in the circumstances that have happened Messrs. Thakurdas & Co. are entitled to refuse the inspection asked for on the ground that they are entitled to exercise their lien to its full extent even though such exercise should embarrass the applicant in the conduct and defence of these various suits. The authorities appear to show that the right to be exercised by a solicitor claiming a lien largely depends upon the circumstances under which he has ceased to act for his client. The test suggested in the text books and authorities is whether or not the solicitor has discharged himself or whether he has been discharged by the client: in other words, the question is whether the solicitor has ceased to act for his client owing to any unjustifiable action of his own or whether he has so ceased owing to the action of the client.

6. Both the parties have based their case on the result of the correspondence between them, and the letter by which the correspondence begins is that of the 16th November 1909 addressed by Messrs. Thakurdas & Co. to the applicant and his brother and nephew and headed as of the suit 517 of 1908.

Suit No. 517 of 1908.

Jassein bin Mahomed v. Ahmed.

Dear Sir

We have received instructions from you Mr. Ahmed to proceed with the suit, whereas you Mr. Yusuf and Mr. Jussin do not desire the suit to go on in the manner proposed by Mr. Ahmed.

These conflicting instructions are injurious to our causes and we are at a loss what to do.

You Mr. Ahmed must remember that the suit has been on the postponed list for a long time and may soon be placed on the prospective board.

We must therefore arrange to get the suit postponed unless it is settled as there is hardly time for translations of documents and preparing materials for the trial.

We must also know definitely whether you Mr. Ahmed wish to renew your application for commission.If you Mr. Ahmed decide to go on with the suit, please note that you Mr. Ahmed will alone have to pay us our costs of the suit and be liable for any costs decreed by the Court, as Mr. Yusuf and Mr. Jassin have given us notice that they will not be liable for the future costs of this suit, and that the arrangement to shave costs and expenses has been put an end to.

Under the circumstances, you Mr. Ahmed will please send us a letter agreeing to bear the costs of the suit from this date yourself. You Mr. Yusuf and Mr. Jassin will also please inform us precisely what you want us to do. You cannot simply tell us that you do not desire to go on with the suit. You must tell us what attitude you wish to adopt and arrange for your desires being carried out.

Yours faithfully,

(Sd.) Thakurdas and Co.

7. Thus, it would appear from that letter that the applicant was expressly asked to state whether he wished to proceed in suit 517 of 1908 and he was called upon to note that if he did desire Messrs. Thakurdas & Co. to continue to act for him in that suit he would be liable for any costs that might be incurred. There is no demand for any payment on account of costs. From the correspondence annexed to the affidavits, it appears that the applicant sent no reply to that letter, and the next letter annexed to the affidavit is again one from Messrs. Thakurdas & Co. to the applicant, which is written by them on behalf of Yussuff and Jassen. Again, Messrs. Thakurdas & Co. point out to the applicant how extremely awkward their position had become and ask the applicant to arrange with Yussuff and Jassen that they should be represented by different solicitors. Again no reply seems to have been sent by the applicant to this letter and accordingly on the 18th January Messrs. Thakurdas & Co. write to the applicant to say that under the circumstances they propose to act for Jassen and Yussuff. In considering whether this correspondence shows that Messrs. Thakurdas & Co. so far as that suit was concerned were discharged by the applicant, it is necessary to bear in mind that the plaintiff in that suit originally was Mahomed and that the applicant was a defendant who sided with the plaintiff, but the attorneys Messrs. Thakurdas & Co. would necessarily be primarily solicitors of the plaintiff who had committed to them the conduct of the suit on his behalf. It appears to me under those circumstances that Messrs. Thakurdas & Co. had done all that they could possibly be expected to do under the circumstances in calling the applicant's attention, in the first place, to the fact that if he wished to continue the suit he would be from that date the party liable to pay Messrs. Thakurdas & Co. their costs, and in the second letter, to which I have referred, of the IIth January, asking the applicant to arrange with his brother and nephew so that they could be represented by different solicitors. After the receipt of the letter of the 18th of January the applicant wrote a letter through his solicitors on the 20th January, in which he says that he notes what is stated in the letter of the 18th instant, namely, that it would be necessary for him to appear by different attorneys than those that are acting for Jassen and Yussuff, and asked what are the circumstances which require the parties to appear by different solicitors and why Messrs. Thakurdas & Co. have elected to act for Jassen and Yussuff. Having regard to the fact that this letter was written more than two months after the receipt by the applicant of Messrs. Thakurdas & Co.'s letter of the 16th of November, and to para eight of the applicant's affidavit filed on this summons, I cannot regard this letter as being altogether bonafide.

8. The para runs:--

8. From November 1909 certain disputes and differences arose between me on the one hand and Jasin and Yusuf the plaintiff and the second defendant on the other hand when Messrs. Thakurdas & Co. sided with the plaintiffs and the second defendant herein and declined to act any further for me this deponent in any of the said suits and matters and proceedings relating to estate of the said deceased Essa bin Khaliffia and upon this I was compelled to change attorneys and to go to my present attorneys Messrs. Ardeshir Hormas-ji Dinshaw & Co. Copy correspondence on the subject is hereto annexed and marked collectively with the letter A.

9. He was expressly warned that it would be necessary to either agree to be liable to the costs of the suit if he wished Messrs. Thakurdas & Co. to continue to act for him or that he should himself appoint other solicitors; and in my opinion he was not entitled to wait for two months before answering that letter and then to suggest that as a matter of fact Messrs. Thakurdas & Co. had discharged themselves as his solicitors.

10. In subsequent correspondence a request was made by the applicant to be allowed to take inspection, and Messrs. Thakurdas & Co. took up a very reasonable position in that they offered to allow the applicant to take inspection in the meantime but requested him to make arrangements for the payment of their costs. It is clear from the letters written during the month of February that the applicant did make from time to time certain promises with regard either to the payment of these costs or to proposed arrangements securing their payment to Messrs. Thakurdas & Co. That inspection continued for at least twenty two days, and it was only stopped when according to Messrs. Thakurdas &Co.; they discovered that the promises of the applicant to secure their costs were wholly illusory and not made with any bona fide intention of carrying them out. Under those circumstances I consider that it is impossible to hold that Messrs. Thakurdas & Co. have acted in this matter otherwise than with a perfect propriety, and I do not consider that they can be held to have discharged themselves within the meaning of the decisions relied upon by the applicant. It must be noted that the demand for payment of costs was made after and not before the discharge of Messrs. Thakurdas & Co. Before their discharge they had only asked the applicant to hold himself liable for costs.

11. It was then suggested that even if that were so Messrs. Thakurdas & Co. were bound to give this inspection on the ground that even if they had been discharged by the client as this was a suit of a representative character they could not embarrass the action of the Court in administering the estate of Essa bin Khalifa by with-holding the inspection of these documents, but it is admitted that the main question in the suits will be whether the third and fourth defendants are the legitimate daughters of the said deceased Shaik Essa bin Khalifa and as such entitled to a share in his estate, and it is principally for the purpose of proving their illegitimacy that this inspection is sought and I do not think that the inspection which the English decisions show the solicitor is required to give in administration actions is for the purpose of determining such questions as this. It is only incidentally that such a question would arise in an administration action and I gather from the cases that have been cited to me and others to which I have referred that the obligation on the solicitor to give inspection of and to produce documents in his possession over which he has a lien in an administration action is con fined to those cases where they are essential to the determination of those questions which arise in the normal administration proceedings, when the estate is being actually administered. Boughton v. Boughton (1883) 23 Ch. D. 169 In re Capital Fire Insurance Association (1883) 24 Ch. D 410.

12. Suit 423 of 1907 was filed during the lifetime of Shaik Essa by Ayeshabibi and Lulvabibi, daughters of Fatmabibi, claiming to be the legitimate daughters of the said Essa bin Khalifa by their mother Fatmabibi, and for the administration of the estate of Fatmabibi whom they alleged to be the wife of the said Essa bin Khalifa. In that case Messrs. Thakurdas & Co. continued to be the solicitors of the applicant and his brothers and subsequently of the applicant and his brother and nephew after the death of Essa bin Khalifa. That suit is not referred to in the earlier correspondence. On the 31st January 1910 Messrs. Ardeshir Hormsji & Dinsha wrote to Thakurdas & Co. an urgent letter in which they say that the applicant had instructed them to act for him in suit 517 of 1908. To that Messrs. Thakurdas & Co. reply asking whether the applicant intended to change his attorneys also in suit 423 of 1907 and suit 640 of 1908. In reply to that Messrs. Ardeshir Hormsji & Dinsha wrote on the 31st January to say that the applicant had instructed them to appear for him in suit 640 of 1908. and on the 4th of February they wrote to say : 'We beg to inform you that Mr. Ahmed bin Shaik Essa Khalifa has instructed us to represent him in the above suit i.e. in suit 423 of 1907' ; and in all these three suits 517, 640 and 423 the order of change of attorneys was obtained at the instance and by the new solicitors of the applicant. In this state of matters it seems quite clear that Messrs. Thakurdas & Co. have never refused to act as the attorneys of the applicant in suit 423 of 1907 and that the change of attorneys was entirely the applicant's own act. I must, therefore, hold that he discharged Messrs. Thakurdas & Co. from their retainer. Exactly the same dispute arises in that suit as in suit 517, namely, the legitimacy or illegitimacy of these two ladies Ayeshabibi and Lulvabibi. It appears to me that under these circumstances, therefore, and having regard to the English decisions and the jurisdiction that the Courts have exercised from time to time in these matters, that it is open to me to make such an order in these summonses as will meet the justice of the claims of the applicant on the one hand and the right of the solicitors to be paid his costs on the other. It is unfortunate that Messrs. Thakurdas & Co. have not taken more active steps to have the exact amount of the costs which they are entitled to recover from the applicant, specifically ascertained. The only calculation they can make is a rough calculation that their costs may come to anything like Rs. 25,000. There is no clear indication anywhere in the affidavits put in on their behalf what exact proportion of this sum would be payable by the applicant. In their letter of the 14th March 1910 Messrs. Thakurdas & Co. asked Messrs. Ardeshir Hormasji Dinshaw & Co. whether their client would pay them Rs. 5000 on account of costs and in another letter they ask whether he is willing to give a charge upon his share in the estate of his father. That appears to me to be a perfectly reasonable proposal on the part of Messrs. Thakurdas & Co., and I order accordingly that on payment by the applicant of the sum of Rs. 5,000 and on his charging his share in the estate of his father to the extent of the balance of costs payable by him, the summonses be made absolute, the applicant to pay the costs. In default of this being done within a fortnight from the date of this order, the summons will be discharged with costs.


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