1. For the purposes of the question with which we have to deal today, we assume that the Vakil had authority from the 1st and 2nd defendants in the suit to receive the purchase-money of the house on their behalf.
2. The Vakil, who was called by the plaintiff as a witness at the hearing of the suit, admitted that he had used the money for his own purposes. It is clear that the only justification for his doing this would be an express authority from the parties on whose behalf he had received the money. He stated in his evidence that he had used the money for his own purposes with the consent of the 2 defendant and the mother of defendants Nos. 1 and 2.
3. As regards the 1st defendant, the Vakil stated that the 1st defendant said the money was to remain with him. It had been settled that the sale proceeds were to to be invested with him. The 1st defendant denied that he authorised the Vakil to retain any portion of the purchase-money.
4. The Vakil having, as we assume, received the money on behalf of the 1st and 2nd defendants, in our opinion, the onus lay, and lay heavily, on him to prove an authority from them to use the money for his own purposes. We are opinion he has failed to discharge this onus. His story on the face of it is a highly improbable one. We find it difficult to believe that he would not have taken from the defendants some written authority empowering him to use their money for his own purposes, if such authority had in fact been given.
5. Mr. Rosario asked that he might be given the opportunity of examining one Alvar, Chetty, to whom a promissory-note for the amount of the purchase money had been given by the Vakil. In view of the fact that the promissory-note is dated five months after the receipt of the money and after the sale had fallen through, we do not think we should derive assistance for the purpose of the question we have to deal with to-day from the evidence of Mr. Alwar Chetty.
6. Mr. Rosario admitted that his client did not attempt to obtain an express consent from the 1st defendant for the using of the money for his own purposes and we are JO t satisfied he obtained the consent of the 2nd defendant.
7. We are prepared to believe that the Vakil had no intention to act dishonestly. In using the money he abused his position as an agent, but in so doing he does not appear to have been acting in his capacity as Vakil. We think we are taking a lenient view in refraining from making an order of suspension, but we have come to the conclusion that the requirements of the case will be met by censuring a Vakil of this Court, for his conduct in using the money of others, whom we have assumed for the purposes of today to be his principals, for his own use without their authority.