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(Raja) Vasireddi Bala Chendra Sekhra Vara Prasada Bahadur Garu Vs. Unnava Subbaya Garu and ors. - Court Judgment

LegalCrystal Citation
Subject Family;Property
CourtChennai
Decided On
Reported inAIR1930Mad317
Appellant(Raja) Vasireddi Bala Chendra Sekhra Vara Prasada Bahadur Garu
RespondentUnnava Subbaya Garu and ors.
Cases ReferredKhunni Lal v. Govind Krishna Narain
Excerpt:
.....the extreme position taken in early cases, that the presumption is unrebuttable, and the solicitor in matters like this, must always show that his client had independent advice; but upon the large assumption that he has made a full disclosure of the circumstances, he must still fail, because on his own showing he did nothing whatsoever to put his client in complete possession of the full facts regarding her obligations and liabilities. the imputation of malice must depend upon the light in which the benami transaction is to be regarded but the suggestion that there was a deliberate intention to attack seems to be well founded and if the parties intended defendant 4 to take action they would presumably also have intended to put him in a position to do so......long will the court refuse to go into nice discussions as to whether the gift-taking the case of a gift by a client to his solicitor-was a gift which was advantageous to the client or whether it was not. i do not mean to say that, if the gift to the solicitor is manifestly one which a prudent man would not have given supposing the relation of solicitor and client to have determined in ha(sic) re, such a fact may not be taken into consideration as showing that, notwithstanding the determination of the actual relation.... it is obvious that the influence of the solicitor had not ceased.... so, on the other hand, the fact that the gift is a very trifling gift, or a gift made by a man with so ample a fortune that it must have been trifling to him, is a matter which might fairly be taken into.....
Judgment:

Jackson, J.

1. Suit to recover possession of 18 acres of land. The lower Court decreed the suit and defendant 4 appeals.

2. The Rajah of Chellapalli had a daughter Rajyalakshmamma who had two children, a daughter, Lakshmidevamma and a son, defendant 4. The Raja was very fond of his daughter who either from him or her mother received property worth three or four lakhs. She died in July 1919, and this stridhanam property devolved upon her daughter Lakshmidevamma for whom, the Raja acted as manager. But he was failing in health, and in March 1921 the Court of Wards took over his estate, and put it under the management of his son. In June 1921 he died. Then both his son and grandson defendant 4 set up claims to the property held, by Lakshmi devamma. The son claimed lands she hold on lease, and house property in Bandar; the grandson, setting up an oral will, claimed the estate of his mother Rajyalakshmamma, including a mitta in Chingleput District. Before any actual suit was filed by the contending parties certain minor disputes came to a head, such as the registration of ownership in Bandar and Chingleput, and the question of a succession certificate. The plaintiff, a First Grade Pleader, who had been her grandfather's legal adviser, advised Lakshmidevamma in these matters and by September 1921 brought them to a successful conclusion. Then in October 1921 there occurred the event which has led to the present suit, and which is best described precisely in plaintiff's own words (P.W. No. 6):

After some proceedings ended favourably for Lakshmidevamma she sent word through her agent P.W. No 7 saying that she wanted to give me and Krishna Rao each 25 acres land and we should take each a sale-deed. But I preferred to take one of 18 acres. Owing to some circumstances I wanted her to execute a sale deed in favour of defendant 5 for me. Her grandmother sent for me and asked why I was not willing to take a sale-dead from Lakshmidevamma. I said there was no hurry. She said that as Lakshmidevamma, was willing to execute a sale deed to me, I may take it. The sale deed is Ex. P I was then present.

3. This, which is pieced together from various parts of plaintiff's deposition is absolutely all that he has to say about the transaction itself. He does not say anywhere that Lakshmidevamma consulted him in the matter, or that he advised her.

4. The agent, P.W. No. 7, says that plaintiff met Lakshmidevamma and asked for 18 acres of land in Yeddunapudi, but the plaintiff does not himself suggest that there was a personal interview. The 18 acres was not a deduction of the original 25, but a more convenient parcel. Lakshmidevamma herself has not been called as a witness. Even at the time of the trial plaintiff had no clear idea why the land was given him. He says that he never kept accounts but some fees were due to him from Lakshmidevamma, her mother and grand-mother.

5. The mother's account would be Rs. 3,000 or 4,000. He had no definite agreement with Lakshmidevamma, but it was after the proceedings ended favourably that her agent made the offer. He had no legal claim against her for the grandfather's account. She probably, however, took what was owned by him by her mother and grandfather into consideration and must have wanted to recompense him for being no longer adviser to the zamindar. He cannot say if the document was only on account of past services but there was no distinct understanding that it was his retainer till the end of the impending litigation. It was impossible to believe that when plaintiff was acting as Lakshmidevamma's legal adviser, and met her at any rate at the time of execution, he left everything in a state of doubt. The learned Advocate General in the course of his argument for the appellant estimated the value of the property at Rs. 1,000 per annum, which was not disputed. Probably Lakshmidevamma could only convey a life-interest, but when the document was executed, she was only 29.

6. The value of the property was out of all proportion to anything that Lakshmidevamma or her mother may have owed the plaintiff for professional services; and as he evidently thought that his fees had some connexion with the grant, he should have disabused the mind of his client on the matter. As he thought that she was also taking the Raja's debt into consideration he should certainly have told her that against her,he had no legal claim. If he supposed that there was an idea of retaining his services for the future for his own and his client's sake she should have come to some precise understanding. He should have let his client know whether he was taking this life-interest with its inherent risks as an acquittance of all his claims or whether supposing that she died early, he would still hold her estate accountable. If he thought that she felt herself under some obligation to recompense him for losing the zamindar's practice, he might have told her that the mere fact of his having served her grandfather who was in bitter enmity with his son, her uncle made it impossible for him to be retained, and his helping her had little to do with the matter.

7. In the plaint he gives as the outstanding reason for the grant the thousands owed him by the Raja for work from Fasli 1326 to 1330, and the thousands owed to him for going to Madras and elsewhere. And yet he never told his client, as he now freely admits that he had no legal claim against her for the fees due from her father. As observed above it is not creditable that with matters in this state nothing more passed between the client and her legal adviser than her offer of 25 acres, and his demand for 18 acres in another's name, with the single comment that there was no hurry. It is the less easy to admit plaintiff's candor for the fact that he has entirely failed to explain why he insisted on this grant being in another's name. He says that he had filed several petitions against Lakshimidevamma's uncle and brother and did not, therefore, like to prejudice her cause by taking the deed in his own name. But this is meaningless. It was quite notorious that he had helped the grandfather and Lakshmidevamma, and the fact that she had paid him his proper fees would not in any way prejudice her. The circumstance would only look ugly if the payment was out of all proportion either to the service or the legal claims, and that is probably why (accepting his own story) the moment he heard that he was to get this gift he was so particular in insisting that it should be in another's name. Because under no conceivable theory was the grant other than an exorbitant payment to plaintiff, and if setting aside the question of fees, it was to be regarded as a mere gift, it would be asked how far this was due to spontaneous generosity and how far to the fact that plaintiff held all his client's documents, and her fortune in the impending litigation was entirely in his hands.

8. As a matter of fact the three disputants compromised their quarrels that very year by the deed of settlement, Ex. 13. Since Lakshmidevamma has not been called as a witness statements attributed to her in that document can hardly be regarded as evidence but Mr. Varadachari was anxious to found upon them for the sake of the respondent. She says there that the document was nominally executed for the sake of convenience in business affairs. And another bit of hearsay is in the evidence of the agent P.W. No. 7:

It was in order that plaintiff might look after her future and pending litigations.

9. Even without accepting these statements as evidence, but merely pursuing the course of speculations to which plaintiff's reticence has driven the Court one might hazard the guess that Lakshmidevamma made the plaintiff this handsome grant from fear that unless she put him under a definite obligation her affairs would not prosper. This may be the motive for plaintiff's refusing frankly to tell the Court all that passed between himself and his client, and giving by way of substitute a version of the transaction so laconic as to seem opposed to all common dealing, courtesy and sense. But if plaintiff really did treat his client in the manner that he describes and allowed her to make him this grant of land from a false sense of obligation and erroneous calculation of his dues, his conduct would be equally opposed to the law governing the relations between a legal adviser or solicitor and his client.

10. In this respect, as freely concealed by Mr. Varadachariar the law of India does not differ from that of England. Perhaps the fullest exposition of the English Law on the subject is to be found in the judgment of Vaughan Williams, L.J., in Wright v. Carter [1903] 1 Ch. 27. His Lordship begins by quoting Lord Eldon in Hatch v. Hatch [1804] 9 Ves. 292.:

It is almost impossible in the course of the connexion of... attorney and client... trustee and cestui que trust that transaction shall stand purporting to be a bounty for the execution of antecedent duty. There may not be a more moral act, one, that would do more credit to a young man beginning the world, or afford a better omen for the future, than if, a trustee having done his duty, the cestui que trust, taking it into his fair, serious, and well informed consideration, were to do an act of bounty like this. But the Court cannot permit it; except quite satisfied, that the act is that of nature... recollecting, that in discussing, whether it is an act of a rational consideration, an act of pure volition, uninfluenced, that enquiry is so easily baffled in a Court of justice, that instead of the spontaneous act of a friend, uninfluenced, it may be the impulse of a mind, misled by undue kindness, or forced by oppression... and therefore, if the Court does nod watch these transactions with a jealousy almost invincible, in a great majority of cases it will lend its assistance to fraud.

11. 'Lord Eldon,' proceeds Vaughan William, L.J.,

was there dealing with the case of a gift, and it is perfectly plain that in the case of a gift the rule applied by the Court of Equity is much more stringent, is more absolute, than the rule that is applied in the case of a bargain or a contract. The principle that I understand Lord Eldon to be affirming is this-that whenever you have these fiduciary relations (and in the present case we have to deal with the particular fiduciary relation of solicitor and client), the moment the relation is established, there arises a presumption of influence, which presumption will continue as long as the relation, such as that of solicitor and client, continues.... Now I am not saying that the presumption.... is an irrebuttable presumption: I do not think that the cases go that length, and I do not think that Lord Eldon meant so to lay down.

'To my mind, all that he means is that, so long as this fiduciary relation continues, so long it will be very difficult to support the gift, and so long will the Court refuse to go into nice discussions as to whether the gift-taking the case of a gift by a client to his solicitor-was a gift which was advantageous to the client or whether it was not. I do not mean to say that, if the gift to the solicitor is manifestly one which a prudent man would not have given supposing the relation of solicitor and client to have determined in ha(SIC) re, such a fact may not be taken into consideration as showing that, notwithstanding the determination of the actual relation.... it is obvious that the influence of the solicitor had not ceased.... So, on the other hand, the fact that the gift is a very trifling gift, or a gift made by a man with so ample a fortune that it must have been trifling to him, is a matter which might fairly be taken into consideration in considering whether the influence continues.'

12. Of course, in the present case there is no question whether the relationship continued, it admittedly did, and it is only to that question that the size of the gift is said here to be relevant. Where the relationship has continued the Court will refuse to go into nice questions of advantage.

13. It is therefore laid down that the Court must be assured that the act is one done after fair, serious, and well informed consideration and, knowing how easily its inquiry may be baffled by, for instance, a rigid avoidance of full disclosure it will watch the transaction with a jealousy almost invincible. What has the plaintiff done in this case to show that his client was fairly dealt with, seriously treated, well informed, or indeed helped to any sort of consideration?

14. The learned Advocate General has cited numerous other authorities, but they merely confirm the principles stated in this judgment, and there is the= less need to consider them for the circumstances that no alternative view is pressed on behalf of respondent. Mr. Varadachariar confined himself to combating the extreme position taken in early cases, that the presumption is unrebuttable, and the solicitor in matters like this, must always show that his client had independent advice; neither of which propositions is advanced on the other side. He also quoted an obiter dictum of Lord Brougham's as regards the relationship of solicitor and client, which when closely examined does not deviate from the direct rulings on the subject:

A client, for example, may naturally entertain a kindly feeling towards a solicitor by whose assistance he has long benefited; and he may fairly and wisely desire to benefit him by a gift.... No law that is tolerable among civilised men-men who have the benefit of civility without the evils of excessive refinement and overdone subtlety-can ever forbid such a transaction, provided the client be of mature age and of sound mind, and there be nothing to show that deception was practised, or that the... solicitor availed himself of his situation to withhold any knowledge, or to exercise any influence hurtful to others and advantageous to himself. In a word, standing in the relation in which he stands to the other party the proof lies upon him to show that he has placed himself in the position of a stranger, that he has cut off., as it were, the connexion which bound him to the party giving... and that nothing has happened, which might not have happened, had no such connexion subsisted:' Hunter v. Atkins [1834] 3 Myl. & K. 113.

15. These observations have little bearing on a case where the connexion still subsisted, and the gift was admittedly in some relation to the solicitor's fees and almost it only amounts to saying that a solicitor must afford full and satisfactory proof rebutting the presumption of undue influence. And this is the burden of all the rulings, that the solicitor must fully assure the Court that he had fully advised his client:

The solicitor must prove that his client was fully informed of all the material facts, understood the transaction and that the transaction itself, both as to price and otherwise, was a fair one;' Allison v. Clay hills [1908] 97 L.T. 709.

16. Lord Halsbury observes in Willis v. Barron [1902] A.C. 271:

He was a solicitor too, and he was her trustee. Was he under no duty to his cestui que trust to tell her what her rights were, and what the rights were which she was giving up. My Lords, it seems to me, I confess, hardly susceptible to argument

17. In Liles v. Terry [1895] 2 Q.B. 679 it is laid down in unequivocal terms that persons standing in a confidential relation towards others cannot entitle themselves to hold benefits which those others may have conferred upon them, unless they can show to the satisfaction of the Court that the person by whom the benefits have been conferred had competent and independent advice in conferring them. In this case Lord Esher holds that the gift is invalid; as is held also in Tomson v. Judge [1855] 3 Drew. 306 where Lord Thurlow, Lord Erskine and Lord Eldon are cited as ruling that it is not open to the attorney to show that the transaction is fair. If it be conceded that the modern rule is not quite so stringent, it is clear, nevertheless, that the showing of the attorney must be particularly full and comprehensive. The case law in the latter matter has recently been reviewed by the Privy Council in Inch Noriah v. Shaik Allie A.I.R. 1929 P.C. 3 where Lord Hailsham lays down that it is necessary for the donee to prove that the gift was the result of the free exercise of independent will:

The most obvious way to prove this is by establishing that the gift was made after the nature and effect of the transaction had been fully explained to the donor by some independent and qualified person so completely as to satisfy the Court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing.... The fact to be established is that stated by Cotton, L.J., in Allcard v. Skinner [1887] 36 Ch. D. 145 that the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will. If evidence is given of circumstances sufficient to establish this fact, their Lordships see no reason for disregarding them merely because they do not include independent advice from a lawyer.

18. So in this case if the plaintiff had proved that he cleared up his client's mind as to her obligations, the exact fees which were owing, and the services which he had rendered in the past or would render in the future, it would not be absolutely essential for him to have referred her to independent advice, though he would more easily have borne his heavy burden of proof, if he had taken that course.

19. To the same effect in another Privy Council case, Soharah v. Chabak Binte. Lord Haldane lays down that the plaintiff:

can discharge the burden, incumbent on him by showing that the relationship notwithstanding, the donor knew completely what he was doing, and acted of his own completely free will. In the case of a solicitor taking a gift from his client this is obviously much more difficult to establish than in other cases.

20. The plaintiff's suit might be dismissed on the very short ground that his statement of the circumstances surrounding this gift is so perfunctory that it cannot be accepted as true and, therefore, provides no rebuttal to the presumption of undue influence. But upon the large assumption that he has made a full disclosure of the circumstances, he must still fail, because on his own showing he did nothing whatsoever to put his client in complete possession of the full facts regarding her obligations and liabilities.

21. Mr. Varadachari, attempted to excuse his client on the ground that the pleadings did not apprise him of the case which he had to meet but he has no legal grievance on that account. Issue 8 refers back to the ground taken in para. 7 of defendant 4's written statement, and there it is definitely stated that plaintiff standing in a fiduciary position got lands conveyed to him in another's name from his client and the transaction was not valid. His further complaint that though plaintiff deliberately withheld the details of the transaction in his examination-in-chief, they ought to have been elicited in cross-examination deserves no notice.

22. Finally, it is argued for the plaintiff-respondent that whatever may be the rights of this transaction defendant 4 has acquired no title to challenge it. It is conceded that if Lakshmidevamma's title to the land in question has passed to defendant 4 her right to question the benami sale would also pass. But it is argued that the deed of settlement is in effect no more than a surrender of her claim by Lakshmidevamma and an acknowledgment of defendant 4's superior title under the oral will which he had set up. Therefore, defendant 4 in order to resist the plaintiff's suit must set up his own title and cannot rely upon any rights flowing from the title of Lakshmidevamma to which he has never succeeded. This plea turns upon whether under the settlement deed, Ex. 13, the parties intended and, effected an actual conveyance, or merely provided for a mutual surrender of title. We have no doubt from a perusal of the document that a conveyance was intended. The exact wording is (in para. 7). It was settled that the land measuring 36.08 acres... together with the rights attache to it should pass to No. 2 (i.e., defendant 4) and, at the close of the para. a so the rights of the muchilika which was executed in favour of Lakshmidevamma regarding the 36.08 acres and which is now in force should pass to defendant 4.

23. Mr. Varadachari suggested, following para. 39 of the lower Court's judgment, that defendant 4 may have been given the precise parcel conveyed to the plaintiff's benamidar out of deliberate malice, so as to enable him to attack his lawful possession. The imputation of malice must depend upon the light in which the benami transaction is to be regarded but the suggestion that there was a deliberate intention to attack seems to be well founded and if the parties intended defendant 4 to take action they would presumably also have intended to put him in a position to do so.

24. Moreover, it seems obvious that if the landlord's right against the tenant was transferred, the right of ownership was also intended to be conveyed. It is not a matter in which case-law is of any assistance. Every compromise of this Court must be considered according to the language of each document, and the peculiar circumstances of each case. No doubt having regard to the special case of a widow alienating property afterwards claimed by a reversioner it has sometimes been held that the document was no more than an acknowledgment of title, and no property was actually conveyed: of. Khunni Lal v. Govind Krishna Narain [1911] 33 All. 359. But in this case it is an undoubted conveyance. The learned Subordinate Judge concedes in his para. 34 that the document may amount to a transfer and reading it as a whole and considering its underlying intention, we have no doubt that is the correct interpretation.

25. The rest of the judgment calls for no special remark except that in para. 24 the plaintiff's vague guesses are given as his positive version, as though he has assured himself that they warranted the grant. And the learned Subordinate Judge sounds too much in his para. 34 upon the circumstance that the defendants did not examine Lakshmidevamma. Primarily the plaintiff might have been expected to call his client, but since neither party has called her, it is idle to attempt to obtain her views in the mother either by surmise or by secondary evidence. No doubt the learned Subordinate Judge's difficulty lay mainly in the fact that he had no access to the English authorities, and did not know how heavily the burden lay upon the plaintiff.

26. For the above reasons the appeal is allowed with costs throughout.

Ramesam, J.

27. I agree.


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