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Mrs. Ratnamma Breganza Vs. Abdul Khader Khureshi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCase Referred No. 19 of 1958
Judge
Reported inAIR1959AP135; 1959CriLJ296
ActsBar Councils Act, 1926 - Sections 10; Legal Practitioners Act, 1879 - Sections 13
AppellantMrs. Ratnamma Breganza
RespondentAbdul Khader Khureshi
Appellant AdvocateD. Narasa Raju, Adv. General
Respondent AdvocateMohamed Ahsan Abedi, Adv.
Excerpt:
.....the case the advocate should have informed ratnamma before applying for succession certificate on behalf of maria and as be had failed to do so, it could not be said that there was any misconduct proved on the part of the advocate. it, therefore, recommended that a warning be administered to the respondent so that he may desist from appearing for the opposite side in such cases in future. thus, it has been made abundantly clear that the advocate was approached by the complainant as well as maria for applying for succession certificate on behalf of both, the advocate has not been able to produce any evidence to show that ratnamma ceased to have any interest in the estate of the late braganza. when he appeared in the court of wards he made a categorical statement on behalf of his client..........that from the circumstances a presumption arose that the amount of rs. 1,200/- might have been paid by ratnamma.having come to these conclusions on the questions of engagement of the respondent and the payment of the fees, the tribunal thought that under the circumstances of the case the advocate should have informed ratnamma before applying for succession certificate on behalf of maria and as be had failed to do so, it could not be said that there was any misconduct proved on the part of the advocate. it, therefore, recommended that a warning be administered to the respondent so that he may desist from appearing for the opposite side in such cases in future.4. notice was issued to the advocate concerned and we heard the arguments of the learned advocate general and counsel for the.....
Judgment:

Srinivasachari, J.

1. This case relates to a complaint filed against an advocate, by one Ratnamma on 18-12-1953. The matter was enquired into by the Tribunal of the Bar Council of the Hyderabad High Court but before the aforesaid Tribunal could submit its findings to the High Court, the Hyderabad High Court was abolished and along with it the Bar Council. After the Andhra Pradesh High Court came into being, the said complaint was referred to the Bar Council of the Andhra Pradesh High Court which held a fresh enquiry and has now submitted its findings.

2. The brief facts relating to the case are: The respondent herein, an advocate practising in Hyderabad was engaged by the complainant to appear before the Court of Wards, Hyderabad, in the matter of an application filed by one Baptista, praying that the estate of one Braganza who died, be taken under the supervision of the Court of Wards, inasmuch as one Ratnamma in possession of the properties was mismanaging the property to the detriment of the minor daughter of the deceased Braganza. The petitioner Baptista professed to-be a close relation of the minor daughter and made it appear that he was trying to safeguard the interests of the minor. Notice was issued to the widow Ratnamma and after a summary enquiry the Court of Wards dismissed the application on 13-3-1952.

3. The complainant Ratnamma stated that about 9 months later she engaged the services of the respondent advocate for the purpose of obtaining a succession certificate to the estate of the late Braganza and that she gave him all instructions and handed over the relevant documents and that the advocate demanded a sum of Rs. 1,200/- on account of fees and that this sum was paid by her on 2-2-1953 by selling away some furniture.

The further allegation of the complainant was that one Sundaramma, her sister, entered into a conspiracy with the daughter of Braganza, Miss Maria and arranged to get an application for succession certificate filed with regard to the property left by Braganza only on behalf of Maria, the daughter, ignoring the complainant; that the respondent instead of filing an application for succession certificate on behalf of the complainant, filed the same on behalf of Maria alone. On these allegations the complainant charged the respondent advocate with professional misconduct and prayed that he be removed from practice and also asked' for the refund of the amount paid by her to the advocate.

Notice was issued to the respondent and he filed a counter denying the allegations made by the complainant and stated that he had been engaged for obtaining a succession certificate only on behalf of Maria and that the fees and the amount for expenses were paid only by Maria and not by Ratnamma. Three witnesses were examined by the complainant including herself while the advocate himself went into the box and examined Sunder-amma and Maria. On this evidence the Tribunal came to the conclusion that it had been established that the respondent was engaged by both Ratnamma and Maria for the purposes of applying for succession certificate to the estate of Braganza on behalf of both Ratnamma and Maria.

With regard to the question as to who paid the sum of Rs. 1,200/- the Tribunal was of the opinion (a) that the evidence showed that Maria was not possessed of sufficient means to pay the aforesaid sum, (b) that the evidence disclosed that Ratnamma sold her furniture in order to realise money to pay the advocate, but inasmuch the purchaser of the furniture, was not precise as to when the furniture was sold, the tribunal opined that from the circumstances a presumption arose that the amount of Rs. 1,200/- might have been paid by Ratnamma.

Having come to these conclusions on the questions of engagement of the respondent and the payment of the fees, the tribunal thought that under the circumstances of the case the advocate should have informed Ratnamma before applying for succession certificate on behalf of Maria and as be had failed to do so, it could not be said that there was any misconduct proved on the part of the advocate. It, therefore, recommended that a warning be administered to the respondent so that he may desist from appearing for the opposite side in such cases in future.

4. Notice was issued to the advocate concerned and we heard the arguments of the learned Advocate General and counsel for the advocate. The whole case turns upon as to whether the engagement of the advocate was on behalf of the complainant Ratnamma and Maria and whether the tees were paid to the advocate by Ratnamma or Maria, for, it is obvious that if the engagement was by Ratnamma and Maria for purposes of applying for succession certificate on behalf of both, it was the duty of the advocate to have applied on behalf of both and not on behalf of Maria.

The receipt of fees from Ratnamma also would make it obligatory upon the advocate to apply on behalf of both or on behalf of Maria, if Ratnamma was agreeable to an application being made on behalf of Maria alone. We were taken through the evidence on record and we are in agreement with the conclusion arrived at by the tribunal that the evidence conclusively establishes that the engagement was on behalf of both. It has to be observed that the first engagement was by Ratnamma alone in the proceedings before the Court of Wards.

The advocate says in his deposition that she was introduced by one Mr. Purushottam. He also says that during the time when the proceedings were pending before the Court of Wards, the complainant and Maria used to come to him. It is also stated by the advocate that after the proceedings before the Court of Wards terminated, Ratnamma, her sister Sundaramma and Maria approached him requesting him to apply for succession certificate, when he asked for the necessary papers to enable him to draft an application for succession certificate.

These documents were handed, over to the advocate and he passed a receipt which is Ex. P. 4. This receipt has been issued in favour of both Ratnamma and Maria. It may also be noticed that even during the time when Baptista's application was pending enquiry, according to the advocate, all the three came to him and the balance of fees payable to him in those proceedings was paid by all. Therefore, according to the advocate's own showing his engagement both in the Court of Wards proceedings and later in the matter of succession certificate was by both Ratnamma and Maria.

While stating so, the advocate wants to make it appear that subsequently Ratnamma ceased to have any interest in the estate of Braganza and only Sundaramma and Maria approached him to apply for succession certificate. He goes to the extent of saying that Ratnamma was agreeable to a succession certificate being obtained in the name of Maria alone. Is it likely that Ratnamma would have represented that Maria was the sole heir when Ratnamma was asserting that she was the widow

We feel that this version of the advocate cannot be believed in view of the various circumstances set forth above. Thus, it has been made abundantly clear that the advocate was approached by the complainant as well as Maria for applying for succession certificate on behalf of both, The advocate has not been able to produce any evidence to show that Ratnamma ceased to have any interest in the estate of the late Braganza.

5. With regard to the question of the payment of the fees, the tribunal, on an appreciation of the evidence has come to the conclusion that Maria was not in a position to pay the sum of Rs. 1,200/-. No doubt evidence was led on behalf of the advocate to show that Maria possessed Rs. 800/-and Sundaramma advanced Rs. 400/-. Sundaramma being in a position to pay Rs. 400/- has been rightly disbelieved by the tribunal and as regards Maria's being in possession of the sum of Rs. 800/- we find from the evidence that Maria herself deposed that Ratnamma was collecting rent and not paying any amounts to her and the amount realised by sale of the furniture, it is admitted by Maria, was realised by Ratnamma alone.

Ratnamma has examined the vendee of the furniture and another person and that evidence is to show that furniture was sold to him. It is, therefore, idle to contend that this amount was paid by Maria herself for getting a succession certificate in her name. The tribunal has stated in this respect as follows;

'Considering the statements of the petitioner that she paid the amount after selling away the articles to Ketram and the support she has received in this behalf from the statements of Miss Sundaramnia and Miss Maria, respondent's witnesses and Ahmadulla Khan, petitioner's witnesses and also considering the inability of Miss Maria to pay the amount of Rs. 800/- a presumption arises that the amount of Rs. 1,200/- might have been paid by the petitioner.'

Evidently the tribunal meant to say that the only inference that could be drawn from the various statements and evidence on record is that Ratnamma paid the amount to the advocate. We are, therefore, clear in our minds that the engagement was by both Ratnamma and Maria and the sum of Rs. 1,200/- was paid by Ratnamma. We may here say that the amount must be regarded as having been paid from out of the estate of Braganza for obtaining the succession certificate on behalf of the persons entitled to the property.

6. If the aforesaid facts are established, then the question arises as to what the duty of the advocate was before applying for succession certificate in the name of Maria alone. The advocate explains his position by saying in his counter that 'he was at liberty to accept the case of succession certificate on behalf of Miss Maria and after accepting the brief on her behalf, he was justified in conducting the case honestly, truthfully and taking all such legal steps at his command to see that justice is done in favour of his client.'

We feel this attitude of the advocate was not justified at all having regard to the background of the case. He has all along been saying that Ratnamma and others came to engage him. He appeared for Ratnamma in the Court of Wards proceedings. He passed a receipt for the documents received from his clients in favour of both and this receipt continues to remain with Ratnamma who produced it before, the tribunal. When he appeared in the Court of Wards he made a categorical statement on behalf of his client under instructions that Ratnamma the widow was managing the property well and that there was no detriment to the minor's interest necessitating the property being taken by the Court of Wards.

The vakalatnama was signed by both. The advocate was aware that both Ratnamma and Maria were collecting rents. Being posted with these facts, it was highly improper on the part of the advocate to apply for succession certificate in the, name of Maria without reference to Ratnamma and make an allegation in the application to the effect that there is Ratnamma Samuel, who asserts to be the wife of the late Mr. Manuel Francis Braganza but it is a false allegation. He further stated in the petition: 'The petitioner alone is entitled to the grant of succession certificate.'

7. Could the advocate, who had filed a counter in the Court of Wards' proceedings allegingthat Ratnamma was the widow of Braganza, turnround and say that she was not the widow ofBraganza and that the daughter alone was the soleheir? If his version were correct, the least onewould have expected is, to state in the applicationfor succession certificate on behalf of Maria thatRatnamma had no objection to the grant of thecertificate in the name of Maria. Further, the advocate's plea that she never approached him ishard to believe.

Taking into consideration all the aspects of the case, we are of the opinion that this is not a case where the advocate could he let off with a mere warning. In such cases it is necessary that the Court should impose a penalty to serve as a warning to other advocates. We may also point out that it is incumbent on the High Court to protect the illiterate litigants whose trusts are betrayed by practitioners and if it is established that the lawyer, instead of discharging his duties faithfully like a person of trust and honour, has betrayed the trust in consequence of which the litigant has been deprived of his right, such advocate must be dealt with severely.

The advocate stands in a loco parentis towards the litigants and it, therefore, follows that a client is entitled to receive disinterested, sincere and honest treatment especially where the client approached the advocate for succour in times of need. The members of the legal profession should stand free from all suspicion. We are of opinion that the interests of justice would he served if we suspend the advocate from practice for a period of six months. In conclusion we must state that the learned Advocate General and the Counsel for the advocate laid the case very fairly before us.


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