1. The plaintiff is a First Grade Pleader practising at Ellore in the Godavari District. The plaint sets forth that the plaintiff was engaged on the 22nd of January 1888 to conduct the defendant's affairs as pleader and agent. He was to look after the defendant's interests in Madras in relation to matters before Government and the Board of Revenue and also to obtain Probate of the will of the late adopted son of the defendant in the District Courts of Godaveri and Kistna. For these services plaintiff alleges that he was to be paid a salary of Rs. 1,000 per mensem and his expenses; and he also alleges that defendant promised him a present of Rupees 1,116 as a mark of gratitude, of which she has only paid him Rupees 5,000. The plaintiff alleges that his services were dispensed with on the 22nd of April 1889? and he claims arrears of fees for four months and interest thereon, deducting Rupees 27-10-0 as balance in hand of money advanced to him for expenses.
2. The defendant's answer was that the allowance of Rs. 1,000 per mensem was to cover all expenses except steamer charges which were the only extra. She stated further that the accounts rendered by the plaintiff were not settled, that he had charged for a large number of items for which the defendant was not liable, that three months' salary only was due, but that as against this must be set off a sum of Us. 3,628-8-0 for which the plaintiff has not accounted. The defendant further alleged that Rs. 5,000 which plaintiff has called a present was obtained from her by coercion that is by plaintiffs' refusal to start for Madras to attend to her litigation until he received a present. Defendant therefore claimed that she was entitled to set off this amount against the plaintiff's claim and alleged that if accounts were taken, the plaintiff would be found in her debt and not she in his.
3. The Subordinate Judge found that under the agreement, the allowance of Rs. 1,000 per mensem was to cover everything except steamer charges, that the plaintiff's services had been dispensed with from the 21st of April 1894, therefore that three month's salary only was due and that there had been no final settlement of accounts rendered. He deducted various items in all the four bills furnished by plaintiff which items he held inadmissible. As to the plea of set off, he held that it was maintainable, notwithstanding that the court fee had been paid late. On the merits he held that the sum of Rs. 5,000 could not be set off by the defendant but that upon the other sums claimed the plaintiff was liable to account for Rs. 1,228-15-5. Upon the whole he held that Rs. 2,088-7-7 were due by defendant and he gave a decree for that amount.
4. The appeal is preferred by the defendant. They urged that' the lower court was wrong in holding that there was no fiduciary relationship between herself and the plaintiff and the whole amount of Rs. 3,268-8-0 should have been allowed as a set off. She contended further that the present was not paid voluntarily but was paid under the pressure of undue influence and coercion and should therefore be taken into account in considering the plaintiff's claim.
5. The plaintiff filed a Memorandum of objections. He urged that the court ought not to have entertained the defendant's claim to set off inasmuch as no stamp duty was paid when the written statement was filed. He also contended that the Subordinate Judge was wrong in disallowing one month's pay, that accounts had been finally settled up to the end of December 1888 and could not be reopened and that defendant was estopped by her own acts and by those of her agents from disputing plaintiff's charges for board and lodging, rent, servants, wages, carriages &c.;
6. The Court then discussed at large the evidence on the questions of fact raised in the case and confirmed the decision of the lower court on these points; it then proceeded as follows.
7. We now come to the defendant's claim against the plaintiff for the set off. We attach no weight to the objection that as no court fee was paid on the written statement when it was first filed it cannot be levied afterwards. It was open to the courts so to levy it, and the omission to do so for a considerable time was as much the mistake of the court as the default of the party. The written statement was put in the 1st of August 1891, though the court fee was only levied in 1892. But the decisions in Chennappa v. Baghunatha I.L.R. (1891) M. 99 : 1 M.L.J. 598 and Patcha Saheb v. Sub-Collector of North Arcot I.L.R. (1891) M. 78 are authority for holding that though the deficient stamp duty was levied afterwards, the claim must be regarded as presented on the day on which it was put in. No bar of limitation therefore, arises.
8. As regards the sum of Rs. 3,628-8-0 which defendant claims on the ground that plaintiff received it from defendant's nephew Simbadri Appa Row in Madras we are of opinion that the defendant's claim must fail. We find that plaintiff has given credit for this amount in his first bill (Exhibit J.) and that the credit and debit account of the bill J has been brought forward in Exhibit L. We have already held that the bill 1 has been accepted and ratified by defendant, and therefore we must hold that this sum has been duly accounted for.
9. But the principal question raised by the defendant is with respect to her claim to set off the sum of Rs. 5000 which she gave to the plaintiff as a present on the 11th August 1888. The lady's contention is that the gift was not voluntary on her part, that plaintiff was pressing for a present on the ground that defendant had, through his instrumentality, been successful in the Civil Re-vision Petition in the High Court and that he delayed to start on his return to Madras for the final hearing of the case until he got what he considered was sufficient mark of defendant's grati' tude. By this delay it is urged that plaintiff brought pressure and undue influence to bear upon the lady and that the gift so exacted falls under the equitable rule which invalidates a gift from client to attorney while the fiduciary relation continues. For the plaintiff it is contended that the relation between the defendant and himself was rather that of principal and agent than of client and attorney, that plaintiff was not employed as a pleader in Madras and indeed could not appear either in the High Court or before Government and the Board but was engaged as an agent because he had some knowledge of law. It is also said that defendant was not without independent advice, that plaintiff never saw her personally but in giving him a present she acted on the advice of her nephew and that the correspondence shows that neither threat nor coercion was used.
10. We are quite unable to accede to the contention that the plaintiff was employed in his professional capacity. His own plaint shows that this is the basis of the claim on which he came into court. The evidence shows that he obtained an introduction to the defendant's family on the plea that he had as a pleader conducted a case similar to the defendant's in another Zemindari family and that he would like to act in the same capacity for the defendant. Ex. A shows that he was engaged as a Vakil, among other things to take out Probate of the Will of adopted son in two District Courts. The Subordinate Judge's view that he could not act as a pleader in Madras but that he was only a medium of communication for instructing Counsel, ignores the obvious fact that in so acting he was doing the work of an attorney, though not himself entitled to appear in the High Court, In all his bills the plaintiff claims the money due to him as fees and not as salary and in all his correspondence with the defendant he describes himself as 'your pleader.'
11. Nor can we agree with the Subordinate Judge that the relation of pleader and client had been severed when the gift was made.
12. The plaintiff was then in receipt of a monthly allowance under the bead of professional fees. The case in Madras was not closed and plaintiff was about to return to Madras for the further hearing. The relation of pleader and client was only terminated on the 21st of April 1889 by Exhibit D.
13. That plaintiff asked for a present in addition to the very liberal allowance which had been given to him is clear from his own evidence. He says (at page 132 of the printed record) that he told Raja Rangayya Appa Row, defendant's nephew, that he expected a liberal present consistent with the dignity of the defendant and his position under her. When he was asked by the Raja's Javabnivis what present he expected he replied that he expected Rs. 10,030 more than what was usually given by the Zemindar namely Rs. 1,116.
14. The defendant did not accede to this preposterous demand but on the 4th August 1888 she sent him a present of Rs. 1,116 (Exhibit B.) This he returned the samy day (vide his letters Ex. XXVIII) with a very clear intimation that such a present was not worth his acceptance. He added that he was in correspondence about the steamers to Madras and that he had no engagement which would prevent his going by the steamer of the 6th of August. He did not, hewever, depart; and on the 11th August (see Exhibit 2 Q) defendant sent him a present of Rupees 5,000, begging him ' to start cheerfully this very night and to conduct affairs in the High Court through our Barristers so that it may be favourable to us.' Having received this encouragement,' as the plaintiff euphemisticall)' describes it he promptly started to Madras either that same night or the next morning.
15. It is argued that this reprehensible conduct did not amount to coercion since plaintiff used no threats and did not himself see the lady who acted on the advice of her nephew. It may be that the defendant was aware that her case was not coming on immediately in the High Court and was also aware that most of her important documents had been already filed. One of her pleaders in Madras, however, had telegraphed to plaintiff to leave by the steamer of the 6th August (vide Ex. XVIII). Defendant appears to be a lady of superior education and to have managed the affairs of a large estate for several years with considerable ability and success. To plaintiff and to others as well she seems to have been very liberal. Her stake in the suit before the High Court was a very large one and she must naturally have been very anxious. It was impossible for her to feel sure when plaintiff; would start if he were not satisfied with a present and she was probably afraid of offending him. Though no threats were used and the plaintiff's conduct may not have amounted to legal coercion, we think that he made use of 'undue influence' within the the meaning of Section 16 of the Indian Contract Act, in that he made use of the fiduciary relation existing between himself and the defendant to obtain an advantage over her which but for such confidential relation he could not have obtained.
16. We do not think that the hope of a present held out in Exhibit A is any justification for the plaintiff's conduct. No sum is mentioned in that document and the present, if given, was to be altogether, outside the legal remuneration agreed on between the parties. It is reasonable to think that if defendant contemplated making any such present she looked forward to the time when the legal relation between herself and the plaintiff should have ceased and the plaintiff's engagement with her be at an end. The words used could hardly have reference to the uncertain success of an interim proceeding.
17. It is contended by the learned Advocate-General that the courts in India which are Courts of Equity and good conscience should apply the equitable rule which Vice Chancellor Bacon in Morgan v. Minnett L. R. 6 Ch. D. 638 pronounced to be as plainly settled as any law existing, namely, that while the relation of solicitor and client subsists the solicitor cannot take a gift from his client. If that rule is held in England to be a requisite for the safety of society, there would be reason for holding that the same necessity exists in a society like India where education is far less advanced and the safeguards far less abundant. In the case before us-, however, it is not necessary to determine whether so strict a rule should be held applicable. We find that not only was the rela-tion of pleader and client subsisting but the evidence of the plaintiff himself shows that the gift was asked for and was granted entirely under the pressure of the influence of that relationship. The only advice available to the lady was that of her own family only, not independent professional assistance. Such being the case, we are constrained to hold that the gift was not voluntary and that defendant is entitled to set off the amount against the plaintiff's claim upon her.
18. The result is that so far from any sum being due from defendant to plaintiff the contrary is the case. The plaintiff has to account to defendant for the Rs. 5,000 improperly obtained as a gift together with Rs. 1,214-5-5 found to he due on the account Exhibit M--total Rs. 6,214-5-5. Pram this sum has to be deducted Rs. 3,000 for three month's fees due to plaintiff which leaves a balance of Rs. 8,214-5-5 in favour of defendant.
19. The decree of the lower court must be reversed and the plaintiff's suit dismissed with costs throughout and there will be a decree in favour of defendant for Us. 3,214-5-5 with proportionate costs on this amount and further interest on the principal sum adjudged at 6 percent per annum from the 1st August 1891. Proportionate costs will be allowed on, the appeal and the memorandum of objection.
20. We think it right to express our disapproval of the conduct of the plaintiff as disclosed in this case. Not only has his conduct in soliciting the gift been unworthy of his profession but he has imposed upon this lady by charging' against her sums altogether outside his agreement, while he himself has been paid a monthly allowance on a scale altogether beyond the value of the services which it was in his power to render.