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N. Thangavelu Mudaliar and anr. Vs. Chengalvaroya Gurukkal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in158Ind.Cas.273; (1935)69MLJ250
AppellantN. Thangavelu Mudaliar and anr.
RespondentChengalvaroya Gurukkal
Excerpt:
.....out of the possession of the first and second defendants themselves and were clearly the account books of the temple audited year after year, no further proof was needed. the charge of fraud was, in my opinion, recklessly made without a shred of evidence to support it and the first and second defendants must have known this perfectly well when they alleged it in their written statement and their advocate himself must also have known this when he signed the written statement as their advocate. it is necessary in my opinion at this point to state that, although an advocate has his duty towards his client to perform, he has other duties and responsibilities as well. they are not puppets compelled to-obey the dictates of their clients where matters of good faith and honourable conduct are..........further pressure he said that he probably then had before him a document which was produced at the trial by defendants 1 and 2 and which is ex. i. this is a letter alleged to have been sent by the third defendant to the joint secretaries to the madras hindu devastanam committee. the plaintiff in the witness-box agreed that it contained the third defendant's signature. the first part of the letter makes a complaint that the plaintiff had been neglecting his duties because he had closed the temple in the evenings and obstructed worshippers and that his charges, for rice, ground-nut oil and fuel had been excessive. he denies that any interest on the debt borrowed on the promissory note for temple purposes is due 'as it is not usual to receive interest in such cases'. in dealing with the.....
Judgment:

Horace Owen Compton Beasley, Kt., C.J.

1. There were four defendants in the suit under appeal. Defendants 1 and 2 are the present trustees and dharmakarthas of the Siddi Buddi Karpaga Vinayagar temple. Defendant 3 and the father of defendant 4 were the trustees and dharmakarthas of the same temple at all material times although they were not so, on the date of the trial. The only contesting defendants were defendants I and 2, the other two defendants being ex parte. The plaintiff's claim was upon a promissory note dated the 25th August, 1927, for Rs. 927 being the principal and balance of interest due on that promissory note which was executed by the third defendant and the deceased father of the fourth defendant who were the then trustees of the temple. It was claimed by the plaintiff that the amount borrowed was for a purpose binding on the temple, namely, for effecting repairs to its property. According to the plaintiff's case, in 1924, the then temple trustees, defendant 3 and the father of defendant 4, borrowed Rs. 550 from his mother Kamakshi Ammal and executed a promissory note in her favour for that amount. At that time the trustees had effected repairs to the temple properties costing Rs. 855-7-9 and the accounts show that in 1924 those repairs were effected. In 1927 when the suit promissory note was executed the plaintiff's case was that a sum of Rs. 300 was due to him as paditharam and arrears of pay, the plaintiff's explanation being that the trustees had spent about Rs. 300 for repairing a house belonging to the temple, that therefore they were not in a position to pay the plaintiff what was due to him and hence they executed a promissory note, Ex. A, in respect of the arrears. The loan taken from Kamakshi Ammal is proved by the account books relating to the devastanam which were produced by defendants 1 and 2. As before stated, the amount spent upon the repairs to the temple properties is also shown in the account books which also show a sum of Rs. 900 due to the plaintiff under the suit promissory note. The signatures of the third defendant and the father of the fourth defendant, the then trustees, on the promissory note are admittedly genuine. Two exhibits are referred to by the learned trial Judge in his judgment which he says show that the temple authorities had borrowed Rs. 100 from the plaintiff for effecting repairs to a house and another Rs. 200 for the same purpose. These are Exs. VII and VII-a which are not printed. The former is dated the 21st November, 1926 and the latter 15th September, 1926. These were produced by defendants 1 and 2. The temple accounts have been regularly audited from year to year by an accountant holding a Government diploma and were sent to the Hindu Devastanam Committee of Madras. This Committee the learned trial Judge describes is a very respectable one appointed by the Government under Act XX of 1863. The learned trial Judge finds that the debt due to Kamakshi Ammal was a genuine debt, and in the face of the accounts he could not have found otherwise. On the question as to whether the temple properties were in need of repair and were repaired in the year 1924, there is the evidence of the account books maintained by the temple and also Ex. E, which is not printed, which is a letter sent to the secretary, Hindu Devastanam Committee, Madras, with a statement of accounts of the devastanam from April, 1924 to March 1925, for approval. In the face of this documentary evidence, the learned trial judge has rightly found that the temple properties needed repair and were actually repaired in 1924; and the defendants called no evidence to the contrary. The learned trial Judge describes the plaintiff's evidence as not quite satisfactory, but says that he is an innocent man who has advanced the little amount of money his mother had got to the temple authorities. But in my view it is enough to say that the plaintiff proved his case and the learned trial Judge rightly granted a decree in his favour.

2. Ordinarily it would be sufficient to leave this case there, but there are matters which render it necessary to make some further observations. These are with regard to the defence set up by the contesting defendants and the conduct of the case by their advocate. Defendants 1 and 2 were not the trustees and dharmakartas of the temple at the time when the suit debt was incurred, and, if they had no knowledge of the suit transactions, their conduct in putting the plaintiff to strict proof of his claim would have been perfectly proper. They, however, did not confine themselves to that strict proof because in their written statement they directly charged the plaintiff with writing up the books of account and other documents, receipt books and vouchers relating to the devastanam and with fabricating evidence with a view to found a claim on their basis on a future occasion. The plaintiff is alleged to have had the custody and control of the account books and with having made entries in them freely as if they represented real transactions relating to the temple without any authority from the trustees in office and without any regard to facts or truth. The allegation against the plaintiff therefore is that he has been guilty of fraud. The written statement, it is important to note, is signed by the advocate for defendants 1 and 2. As before stated, the account books were at the time of the trial and probably for some time before in the possession of defendants 1 and 2 and they produced them at the trial. They were the account books of the temple obviously kept in the ordinary course of business. The accounts have been audited every year by an accountant; they bear his seal; they have clearly been checked by him; vouchers have been examined; and the yearly accounts have been submitted to the devastanam committee for their approval. These account books show beyond question that the amount claimed in the suit was borrowed by the then trustees of the temple and quite apart from the fact that they themselves executed the promissory note and did not at the trial dispute its execution by them, they show that the amount was borrowed for a purpose binding upon the temple, namely, for repairs done to its property. In the face of this documentary evidence in possession of defendants 1 and 2, it is amazing to find that they charged the plaintiff with fraud. This charge is of course one which the defendants had to prove, but they did not attempt to do so by any affirmative evidence. They called none. They contented themselves with a cross-examination of the plaintiff and putting in a document to which I shall refer later. They further contended before us that the account books had not been properly proved. Having regard to the fact that the account books were produced out of the possession of the first and second defendants themselves and were clearly the account books of the temple audited year after year, no further proof was needed. The charge of fraud was, in my opinion, recklessly made without a shred of evidence to support it and the first and second defendants must have known this perfectly well when they alleged it in their written statement and their advocate himself must also have known this when he signed the written statement as their advocate. The first and second defendants had no right whatever to allege fraud unless they were prepared to prove it. So much for the first and second defendants. With regard to the advocate, it was most improper for him to allege fraud on their behalf in the written statement without satisfying himself that there was some evidence which would reasonably justify such a charge. During the hearing of the appeal we asked him to tell us upon what information or evidence such a charge was made. He was unable to say anything except that he was acting on his client's instructions. After further pressure he said that he probably then had before him a document which was produced at the trial by defendants 1 and 2 and which is Ex. I. This is a letter alleged to have been sent by the third defendant to the joint secretaries to the Madras Hindu Devastanam Committee. The plaintiff in the witness-box agreed that it contained the third defendant's signature. The first part of the letter makes a complaint that the plaintiff had been neglecting his duties because he had closed the temple in the evenings and obstructed worshippers and that his charges, for rice, ground-nut oil and fuel had been excessive. He denies that any interest on the debt borrowed on the promissory note for temple purposes is due 'as it is not usual to receive interest in such cases'. In dealing with the day-book for 1930-1931 he says that neither he nor his co-trustee gave any authority to the plaintiff to write the accounts and that he had written them up according to his own will. It is clear however from this document that the amount claimed by the plaintiff have been borrowed from him on the promissory note and was for temple purposes because the third defendant says as follows:

In respect of the debt borrowed for temple purposes, though interest is1 shown in the pro-note it is not usual to receive interest. Mahadevalinga Mudaliar, Kamakshi Ammal, the Hindu Janopakara Nidhi have not received interest.

3. The promissory note which the third defendant himself signed is not there disputed and that the amount borrowed was for purposes binding on the temple is not denied, the only question being the claim for interest. Even if the advocate had this document before him on the date when the written statement was drafted, it most certainly did not justify the charge of fraud made in it which was obviously a reckless one. It is necessary in my opinion at this point to state that, although an advocate has his duty towards his client to perform, he has other duties and responsibilities as well. He has no right whatever even on the instructions of his client recklessly to make charges of fraud. His responsibility to the Court, and I may add also to the Bar whose traditions it is his duty to maintain, make it incumbent upon him to satisfy himself that there are reasonable grounds for making such charges. On this point there are observations with which I entirely agree in the judgment of Mears, C.J., Walsh and Sulaiman, JJ. in In the matter of Dwarka Prasad Mithal I.L.R.(1923) 46 All. 121 (F.B.) where it is said:

Members of the legal profession are under no duty to their clients to make grave and scandalous charges either against Judges or the opposite parties on the mere wish of their clients. They are not puppets Compelled to-obey the dictates of their clients where matters of good faith and honourable conduct are concerned. They are responsible to the Court for the fair and honest conduct of a case. They are not mere agents of the man who pays them, but are acting in the administration of justice, and in matters of this kind they are bound to exercise an independent judgment, and to conduct themselves with a sense of personal responsibility. If they fail to act with reasonable care and caution, they are unfit to enjoy the privileges conferred upon them by law, and serious breaches must be visited with punishment.

4. I have already stated my opinion that the charge of fraud was recklessly made and I very much regret that it should have been made by an advocate who has been in legal practice for some years and who cannot reasonably plead ignorance of his duty and responsibility. But the matter does not end there because, in my opinion, the production of Ex. I at the trial by the advocate was even more improper conduct. As the learned trial Judge says, no reliance can be placed upon it. There is no evidence of how it came to be prepared and as it was addressed not to the first and second defendants at all, but to the devasthanam committee no explanation was offered as to how it ever came into the possession of the first and second defendants at all. No one from the Madras Hindu Devasthanam Committee was called as a witness to produce it and what is more serious still the writer of the document, himself one of the defendants, was never put into the witness-box where he could have been cross-examined about its contents. The document was put in clearly with the object of influencing the Court against the plaintiff on the issue of fraud. The defendant's advocate must have known that it was improper to use such a document in support of a charge of fraud knowing that he was not going to call its writer and that he was not going to call any evidence whatsoever in support of the charge of fraud. Such conduct on the part of the advocate was most improper and cannot be too strongly condemned. We have had to consider seriously the question whether we should cause disciplinary action to be taken against the advocate in question but we have decided that the observations which I have made are a sufficiently serious warning to the advocate to dispose of the matter.

5. Appeal dismissed with costs against defendants 1 and 2 personally.

King, J.

6. I agree.


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