(1) This second appeal relates to a property which, according to the plaintiffs, was gifted to plaintiff 1 and to his brother Kallappa as early as in 1914. They claim to be in possession of half the property and filed the suit to recover possession of the remaining half from the three defendants. According to the plaintiffs, the property was thus divided by reason of a compromise in an earlier suit filed by the present plaintiffs against one Channabasavva who is claimed to be the adoptive mother of the defendant. It is further alleged that, according to the terms of the compromise, Channabasavva was to enjoy half the gifted property till her death for her maintenance and that the property was to revert back to the plaintiffs after her death. She having died on 17-9-1948 the plaintiffs claimed possession of the half share in her possession. The defendant denied the plaintiffs' case by saying that there was no suit and that it is not valid and binding on him. He further claimed that he was adopted by Channabasavva on 17-10-1944 and that he is entitled to inherit her husband's properties. He also contended that even apart from his claim as an adopted son, he is entitled to inherit Yellappa, the original owner of the properties, who is said to have gifted the property to Channabasavva, his daughter-in-law. The suit was decreed by the trial Court but, in appeal the decree was reversed and the suit was dismissed. It is against this decree that the plaintiff have come up in second appeal.
(2) The suit has a long history and a chequered career. I thing it is necessary to mention the same in brief. As already mentioned, Long Cause Suit No. 644/14 was filed by plaintiffs against Channabasavva and her father-in-law Yellappa who was the donor of the plaintiffs. In that suit there was a compromise between the plaintiffs and Channabasavva. The abovementioned terms are the material portions of that compromise. Yellappa, the donor, who was a party to the suit, remained absent, and he was not a party to the compromise.
As the decree in that suit was on the compromise, obviously Yallappa was not bound by the decree. That is how defendant claiming as the heir of Yallappa contends that he is not bound by the decree. So far as the plaintiffs are concerned, they got possession of their half share in the property on 22-1-1917 by executing the abovesaid compromise decree. The other half evidently remained with Channabasavva who died on 17-9-1948.
(3) Plaintiff I filed Long Cause Suit No. 214/49 against the present defendant for possession of the said half portion of the land which was left with Channabasavva as a result of the compromise. It appears that, in the course of the suit proceedings, it was felt that the suit based on a compromise decree without basing the claim on title viz., the gift, was untenable. The plaintiffs therefore gave a pursis Ext. 29, dated 20-3-1950 stating that the suit was not based on gift but on heirship. On that technical ground, it was thought necessary to withdraw the suit. That suit was withdrawn with permission to file a fresh suit on the same cause of action. Ext. 37 dated 11-9-1950 is the application to withdraw the suit. Thereafter the present suit was filed on 24-11-1950.
(4) It appears that, at the time of hearing of the present suit before Mr. K. R. Pawar, Civil Judge, Junior Division, the learned pleader for the plaintiffs stated to the Court that the present suit is based on the decree in L. C. Suit No. 644/14. The learned Civil Judge proceeded on the footing that the suit was based on the suit. Appeal No. 102 of 1952 was filed before the District Court. The learned District Judge thought that the suit on gift having given a decree on that basis. He remanded the case to the trial Court after framing three more issues.
(5) After remand, the case was heard by Sri M. C. Konnur, Joint Civil Judge, Junior Division. The Civil judge again considered that the suit was based on gift. He found that the gift deed was proved and valid and that it was binding on the defendant. A decree was, therefore, passed in favour of the plaintiffs. There was an appeal against that decree in Civil Appeal No. 254/53. The learned Assistant Judge, who heard and decided the appeal, referred to the admissions by the pleader before Sri K. R. Pawar. Civil Judge, and the statements of the learned pleader were binding on the plaintiffs and that the trial Judge was wrong in proceeding on the basis that the suit was based on the gift deed in spite of the observations in the judgment of the appellate Court to A. C 102/52. Thus shuttling out the case of the gift, the learned Assistant Judge held that the plaintiffs failed to prove their title to the suit land. He, therefore, allowed the appeal and dismissed the suit with costs. It is against this decree that the present appeal is filed.
(6) The learned Advocate for the appellant contends mainly that the lower appellate Court was wrong in shutting out the case of gift. According to him, the whole case is based on the gift, and if he is permitted to do so, he could show that his title is satisfactorily proved. As the case of the plaintiffs is shut out merely on the ground that the learned Pleader for the plaintiffs gave certain admissions giving up a part of the case, the effect of the admission also has to be considered in this case. The points for consideration, therefore, resolve themselves to these:
1. Firstly we have to consider the grounds on which the plaintiffs have based their suit; and
2. Secondly, whether part of the case relating to the gift has been given up by their pleader and if so, is it binding upon the plaintiffs?
(7) In order to know the cause of action on which the suit is based, it would be necessary to go into the contents of the plaint. Para 1 of the plaint gives the description of the property, and paras 2 to 8 give the history of the case commencing from the gift and narrating the above litigation and the decree that was passed and the subsequent events referred to above. Para 9 is the material portion and it may be translated as below:
'In pursuance of the gift deed passed by the abovementioned Yellappa Kenchappa Sannidhi and the compromise decree in Civil Suit No. 644/14, the plaintiffs become owners of the suit land and are entitled to get possession of the property after the death of Channabasavva.'
Then follow other recitals in para 10 relating to the right or title set up by the defendant the adopted son of Channabasavva. According to the learned Advocate for the defendant, the suit is not only based on the gift but is entirely founded on the gift. He urges that the reference to the compromise decree is not only to explain the possession of half the property but also to show that after the life-time of Channabasavva, they are entitled to get possession of it. According to him, it was not intended for the purpose of basing title by reasons of the decree. According to the learned Advocate for the respondent, this para can be read to mean that the plaintiffs were basing their case on the gift deed as well as on the compromise decree. Both the interpretations are not unlikely. But to my mind, the proper interpretation appears to be that the plaintiffs base their claim starting with the gift deed and proceeding through the compromise decree, thus explaining the whole range of the period that elapsed between the gift deed and the death of Channabasavva. That means, in effect, the case is substantially based on the gift and the compromise is referred to for the purpose of continuing the title that originated from the gift.
(8) The next question for consideration is whether the part of the case relating to the gift was given up by the learned Advocate for the plaintiffs. The first occasion when some admission was made by the learned Pleader was at the time of hearing before Sri K. R. Powar Civil judge. The observations of the learned Judge himself are:
'At the time of the hearing the learned pleader for the plaintiff submitted that the present suit is based on the decree in L. C. Civil Suit No. 644/14. It is a mistake. The suit is not based on that decree. The recitals in the plaintiff clearly show that the suit is based on the gift and issues have been framed on the basis that the suit is based on the gift and not on the said decree.'
Firstly, even according to the above observations, there is no giving up of the case based on the gift. The admission attributed to the learned pleader is that he urged that their case was based on the decree. Even that part of his statement was not decree. Even that part of his statement was not accepted by the Civil Judge because he found that the suit was actually based on the gift and not on the decree. But unfortunately this has been referred to by the learned District Judge in Appeal No. 102/52 as an admission by the learned pleader giving up his case on the gift. According to him, the same thing was repeated before him in appeal. In para 5 of his judgment, he states:
'In this Court also the learned pleader for the plaintiff-respondent has stated that the plaint is based on the decree in the Civil Court.'
It may be noted here that even there the learned pleader is not said to have made any statement pleader is not said to have made any statement that he gave up the case on the basis of the gift. He merely stated that the plaint is based on the decree.
(9) This does not necessarily mean that he gave up the case of gift. That is exactly, how, when the case went back after remand, the Civil Judge Sri Konnur also understood it. Referring to the abovesaid observations of the District Judge in his judgment, he said that it does not mean that the pleader had given up his claim to the title based on gift. In fact, he held that the gift deed was proved and was valid and gave a decree to the plaintiff. When the matter again went up in appeal, the learned Assistant Judge took a similar view as was previously taken by the District Judge in Civil Appeal No. 102/52.
Referring to the admission by the pleader for the appellant before the Civil judge, Sri Power, he attributed to the learned pleader a statement that the suit was based on the decree of 1914 and not on the gift deed. As abovesaid, the later part is nowhere to be found in the judgment of Sri Powar. Similarly, referring to the judgment in appeal No. 102/52, he stated: 'Even in appeal, the learned pleader for the plaintiff-respondents has stated that the present suit is based on the decree of 1914 and not on the gift deed.' The later part which is a negative statement amounting to giving up the case on the gift deed does not find a place in para 5 which refers to the admission made by the pleader in that Court. But which referring again to the same in para 10, the learned District Judge does mention that the admission was in its negative form also. The learned Assistant Judge further mentions in his judgment:
'I asked him whether he represented to the Appellate Court in Appeal No. 102 of 1953 whether the suit was not based on the decree of 1914. He said that he was not prepared to say that he did not make a submission attributed to him by the learned Judge.'
(10) These are all the statements that are attributed to the learned pleader and this is all the admission that he is supposed to have made. On the basis of these statements, it was held by the learned Assistant Judge that he had made an admission possibly that 'the suit was based not on gift deed.' He further held that the party was bound by the admission even though it may be erroneous. In that view of the case, the plaintiffs' suit on the basis of gift was shut out and the case as based on the decree alone was considered with the result that the suit came to be dismissed.
(11) The learned advocate for the appellant contends that even accepting all the above mentions of the admission made by the three Judges to be correct, they do not amount to a giving up of the case based on the gift deed and that such an admission ahs not been made by the learned pleader. According to him, no such negative statement has been made. The statement made was only that in the view of the learned pleader who was conducting the case, he might have thought that as a more important ground. But that does not mean that the case based on gift was stated by him to have been given up. In this connection, it should be noted that there was an earlier suit No. 214/49 where the suit was based merely on the pleaders conducting that case that there was a defect in the frame the suit in that it was not based on the title granted to the plaintiffs by a gift.
It was thought necessary to withdraw that suit with liberty to bring a fresh suit. The present suit was filed thereafter in order to get over that difficulty. Under these circumstances, it would be very difficult to believe that a pleader in charge of the case would make a statement that the case on the basis of the gift was given up by his party. One can well understand his making a statement, that according to his view, the case based on the decree was the proper aspect of the case on the decree was the proper aspect of the case to be pressed. Assuming he has made this positive aspect of the case, it cannot be accepted that he could have made the negative aspect of it, viz., that the case of gift was given up. The only Judge who attributes the statement to the pleader that he stated that the suit was not based on the gift is the learned District Judge who heard the appeal No. 102/52.
As already pointed out even he does not make that statement in para 5 but that part of it comes to be added in para 10. Obviously, he did not take any writing from the learned pleader. He was mainly relying on his memory for the statement. From the Roznama in Appeal No. 102/52., it appears that arguments in the case were heard on 8-8-1953 and judgment was delivered on 25-8-1953. It is not unlikely that some inadvertent addition has crept in between these two dates.
(12) The next point for consideration is whether the admission attributed to the learned pleader, if made is binding on the parties. In this connection, the learned advocate for the appellant draws my attention to the fact that there is no vakalat on record signed by the party engaging Sri Kambli as his pleader. It is this Mr. Kambli that is said to have made all the admissions. According to the learned advocate for the appellant, if there is no vakalat held by him, he could not act for the party although he could merely plead. It is father contended that giving up a case or a part of a case form part of an acting by a pleader and it is beyond the scope of mere pleading. On the other hand, the learned advocate for the respondents urges that a person who pleads is equally entitled to state which part of the case on which he does not. Merely because the learned pleader stated that his case is not based on the gift deed but that it is based on the decree, does not mean that he could not make the statement in the course of his pleading. According to him, no vakalat is necessary for the purpose.
(13) This brings us to the question as to the scope of pleading as distinguished from acting by a pleader. In this connection, the learned advocate for the appellant states that the essential distinction lies in the fact that when a pleader acts, he is supposed to do it as the agent of the principal and as representing him. The duties case and the responsibilities owned are those as between a principal and an agent. Whenever a matter requires the discharge of such a responsibility, no pleader can act without a written vakalat authorizing him in that behalf. I am inclined to think that there is much force in this argument. The essence of the relationship of a party and a pleader is that the pleader derives his authority from the party. That is why he has to take a writing signed by the party and produce it before the Court as required by Order III, R. 4 C.P.C.
(14) Whenever in the course of the proceedings any matter requires the act of a party, that could only be done by a pleader who has such an authority. On other occasions, if some technical work is to be attended to in the progress of the work is to be attended to in the progress of the case, certainly that may be attended to by a pleader who is merely authorised by another pleader to do so. Pleading may also include arguing and interpreting the party's case. Considered from this point of view, in the present case, if the pleader was merely explaining the substance of the plaint to the Court and in that act if he stated that his own reading of the plaint is that it is based on the decree, possibly that could come within the ambit of pleading. But if, he stated to the Court that a part of the case based on the gift was being given up by him, he could not do so without an authority from the party--whether special or general. It is not necessary for me to decide here whether this could or could not be done by the pleader who ahs a vakalat and who is entitled to act on behalf of the party. All that I need decide for the purpose of this case is that a person who has no such authority and one who is merely pleading cannot take this liberty. If he did so, it is beyond the scope of mere pleading.
(15) The above view that the scope of acting by a pleader is of the same nature as that of an agent while acting for his principal, is expressed in Fuzzle Ali, In re. 19 Suth WR Cr. 8 at p. 9 :
'I think that the word 'act' there (i.e., in Act XX of 1868 section 5) means the doing something as the agent of the principal part, which shall be recognised or taken notice of by the Court as the act of that principal; such for instance, as filing a document.'
It may be mentioned here that there is no vakalat filed in the name of Sri Kambli signed by the present appellant. In view of the fact that he is said to have conducted the case on all the four occasions, it has to be assumed that he did so as a pleader engaged by Sri Bendigeri--pleader who holds a vakalat on behalf of the appellant. In fact, he has put in two endorsements showing that he appeared on behalf of Sri Bendigeri. In that event, the authority that has given to Sri Kambli was only to plead as mentioned in the proviso to sub-rule (5) of Order III, Rule 4. While so pleading, if he gave up a part of the case of his party, it has to be said that it was in excess of his authority. The party cannot be said to be bound by such a giving up. The lower Court was, therefore, wrong in holding that there was such a giving up and further in holding that the appellant was bound by it.
(16) The learned advocate for the respondents urges that the appellant has not taken exception either to Sri Kambli conducting as his lawyer or to the fact that the admission made by him exceeded his authority at any stage till it is made out by his learned advocate at the time of argument in this Court. The learned advocate for the appellant replies that ground No. 4 in the memorandum of appeal covers the point. It says that the lower Court erred in law in holding that the statement of Kambli is binding on the plaintiffs. Even then, according to the learned advocate for the respondents, the appellant should not be permitted to raise this point at this late stage. In this connection, he relies on the decision in Nagabhushanam v. Jagannayakalu AIR 1925 Mad 1931. It appears that in that case the Court made a statement in its judgment that a pleader for one of the parties made an important admission. It was later on held that the admission was, in fact, not made. In those circumstances, the matter was agitated before the High Court one year and nine months after the admission was supposed to have been made. It was then held by the High Court that the proper remedy was to ask the Judge for a review of his judgment when the matter was fresh in the mind of both the Judge and the Vakils. From the report, it appears that the question as to whether such an admission was made or was not made was sought to be proved by the affidavit of the lawyer made one year and nine months after the incident. Their Lordships observed:
'Mr. Nagabhushanam states that he does not remember any such admission being made and he is perfectly certain that such admission could not have been made by him. In the fact of this evidence. I cannot say that the learned Judge's statement has been in any way shaken.'
The reference is to this sort of halting affidavit where the lawyer concerned is not in a position either to admit or to deny. In that case, there was no question of the authority of the lawyer to make any such statement. In the present case, the lawyer had no authority since he held no vakalat. Under these circumstances. I do not think that the objection needs to be upheld.
(17) In the result, the appeal is allowed. The decree of the lower appellate Court is set aside. The case is remanded to the lower appellate Court for considering the question of the gift deed along with all other points and for a decision according to law. Both the parties should be allowed to lead fresh evidence if necessary. The costs of the appeal to be costs in the cause.
(18) Appeal allowed.