1. We are not asked by Mr. P.R. Sundara Aiyar to deal with the pleader on the charge of supplying blank paper for the signature of the client, or of acting without instructions in the execution proceedings. Section 13(a) of the Legal Practitioners Act does not, as the District Judge seems to think, prohibit a pleader from acting without instructions, but only from acting on instructions from a person who is not the client or his client's agent or near relative.
2. In the present case the conduct of the proceedings was left entirely to the pleader, the client being absent in the Tanjore District, and though we are of opinion that in such matters as purchasing for the client at the execution sales and the making of affidavits the pleader ought to have taken instructions, we cannot say that he may not have honestly believed himself justified in taking all the responsibility on himself in the circumstances.
3. As regards the blank forms of execution petitions, none of which were actually used, the pleader explained that it was usual for clients to sign such papers to facilitate business. No doubt this explanation is true, but the practice is not to be encouraged. We think that a pleader ought not to suggest to his client the desirability of signing incomplete papers; there is always a danger that improper use may be made of them by gumastahs and others into whose hands they may come.
4. We do not think that so far as these charges are concerned it is necessary to do more than state our opinion that the pleader's conduct was injudicious.
5. The remaining, charge is in fact one of making a profit for himself out of execution proceedings of his client. It is alleged that the pleader purchased for a small sum of Rs. 11 in the name of Vedanayagam Mudaliar, a relation of his own, a promissory note for Rs. 500 sold in execution of his client, Gopalayyar's decree, that he did not communicate the fact of the purchase to the client, and having sued on the note and obtained some Rs. 554 in satisfaction of the claim thereon he retained the money for himself or for himself and Vedanayagam in whose name the proceedings were conducted.
6. The pleader's case is that the purchase was not his but Vedanayagam's, that he recovered the money as Vedanayagam's Vakil, and did not pay it over to the decree-holder, because a claim was made by Gopalayyar to the money recovered, and he retained it till that should be settled.
7. The District Judge seems to be of opinion that this charge is proved and says that the evidence conveys to his mind the impression that 'from the first,' i.e., we suppose from a time before the sale, the pleader intended to secure for himself the benefit of the promissory note.
8. We have to see whether the evidence looked at fairly excludes any reasonable belief in the pleader's innocence. Had Gopalayyar lived, there might have been more evidence, but he died after making a complaint to the Bar Association, and his representatives have not taken any steps to prove his accusations against his pleader. But his death cannot, of course, shift the burden of proof, and we must take the evidence as we have it.
9. Now there is nothing in the evidence to suggest that the pleader knew at the time of the sale, that the promissory note was likely to be a valuable property, the maker lived in Ceylon and there is no evidence of any sort that the pleader knew him or his circumstances.
10. In December 1905, Vedanayagam was employed by the pleader to bid on behalf of Gopalayyar at the auction of half notes; at the auction of the promissory note in the previous March another man, Minakshinatha Pillay, was employed to bid for Gopalayyar, and was not present at the sale. Vedanayagam who was not nominated as Gopalayyar's agent was present and made the only bid on the occasion,
11. Minakshinatha Pillay's absence from the sale is the point on which explanation is wanted here. He was nominated by the pleader as Gopalayyar's agent to bid and he did not bid. The District Judge did not examine him as he might well have done and we have no explanation, but unless we assume that at the time of the sale the pleader knew of the value of the property, it cannot be said that the absence of Minakshinatha Pillay throws suspicion upon him. He did not, so far as we know, report to Gopalayyar the fact that Minakshinatha Pillay had failed to attend the sale, but Minakshinatha Pillay was his friend and there was no very evident duty on him to take action against him unless, once more, we assume that he knew that Minakshinatha's omission was likely to cause serious loss to Gopalayyar.
12. At the second sale three months later Vedanayagam was employed to bid for Gopalayyar and did so: it can hardly be said that this fact casts suspicion on his position at the sale of the previous March. The pleader explains that if Minakshinatha Pillay had been present it would not have been necessary to put forward Vedanayagam. We are asked to take this statement as an admission that Vedanayagam bid on behalf of Gopalayyar at the first sale, and the context in which the words appear in the pleader's statement supports that suggestion. We think, however, that the pleader must have been referring in this passage to the second sale. He has not elsewhere admitted that Vedanayagam was put forward at the first sale, and there was not in fact any putting forward of his name. The suggestion that he was set up in Minakshinatha's absence to bid for Gopalayyar is not easily reconciled with the District Judge's view that from the first there was a scheme to profit at the expense of Gopalayyar.
13. The District Judge relies on the correspondence (Ex. K., L., M., N., O., P.) which followed the later sale. In December 1905 Vedanayagam had compromised his suit on the promissory note and obtained part satisfaction of the decree. In 1906 the pleader presses Gopalayyar to assign his decree to Minakshinatha Pillay for half realization. To connect this correspondence with the realization of the amount due on the pro-note it is necessary to suppose that the pleader fearful lest Gopalayyar should learn how he had been treated and take steps to obtain redress, attempted to obtain the assignment as a way of finally severing all connection between Gopalayyar and the execution proceedings. That is purely conjectural, and it is as easy to conjecture other reasons for the correspondence. Indeed it seems hardly doubtful, if the letters are read without any previously formed suspicion, that the pleader found Gopalayyar unwilling to pay the costs of execution and not anxious to proceed and propose the assignment to his friend of getting something out of the decree. Exhibits O. and P. indicate that he may have been under a misapprehension as to the half currency notes. The assignment of the decree would clearly not enable him or the assignee to pocket any money that might be made out of them. They were already the property of Gopalayyar and no longer that of the judgment-debtor.
14. The object which the pleader had in view in proposing the assignment must remain a matter of conjecture. The District Judge might have taken the pleader's explanation on the point, but we do not find any observations about the correspondence in the pleader's statement.
15. Really the only evidence against the pleader on this charge is the fact that having collected the money on Vedanayagam's decree he did not pay it to Vedanayagam but retained it himself and when the complaint was made to the Bar Association he offered it, if they should so decide, to pay to Gopalayyar the balance of this fund after deducting the expenses of the execution proceedings in Gopalayyar's decree, thus disregarding Vedanayagam's claim.
16. His explanation for non-payment is that when Gopalayyar laid claim to the money he thought it better not to pay it to any one else and he explains his treatment of the fund as Gopalayyar's by alleging that when the matter was laid before the Bar Association, Vedanayagam, his friend and relation, was willing to make over the profit on the transaction to Gopalayyar if the Bar Association thought he ought to get it. Beyond his statement there is no evidence that Gopalayyar made any claim soon after the receiving of the money, but the statement is un-contradicted and we find it impossible to hold that it is false beyond reasonable doubt. There is no evidence to show when or how the fact of the suit on the promissory note and its result was brought to the notice of Gopalayyar, but there is at least a probability that before complaining' to the Bar Association, he did make a claim to the fruits of the decree.
17. On the other point the evidence of Vedanayagam might have been useful, but we think it is more than doubtful whether any good purpose would be served by calling for it now, and it was not suggested that we ought to do so.
18. But even if Gopalayyar did not make a claim and even if the pleader was interested in the money recovered on. Vedanayagam's decree, it does not follow that the pleader was interested in the sale. The evidence that he retained the money so no doubt gives colour to the suggestion that the purchase was in reality for himself, but is not inconsistent with a subsequent agreement between him and Vedanayagam to share between them whatever might be the profit of the speculative transaction of the latter.
19. We are unable to say that the charge against the pleader of enriching himself at the expense of his client is sufficiently proved to justify us in accepting the recommendation of the District Judge to suspend him from practice.