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Brojendra Nath Mullick Vs. Luckhimoni Dassee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal595
AppellantBrojendra Nath Mullick
RespondentLuckhimoni Dassee
Cases ReferredHolditch v. Carter
Excerpt:
attorney and client - remuneration--suit--promissory note--agreement by attorney to take a gross sum in lieu of costs--client--in attorney's day-book. - .....of this court upon a promissory note dated the 15th of december 1897 executed by one mutty lall paul, since deceased.2. mutty lall paul died on the 2nd of january 1898, and the suit is brought against his heirs and representatives for the amount of the promissory note, viz. rs. 5,000. the plaintiff's case is that he acted as mutty lall paul's attorney from february 1893 until his death, that he helped him in discovering a forged release and in other ways assisted him in obtaining a decree in the court of the subordinate judge of alipore declaring the said release to be a forgery, and that in recognition of his work in connection with these matters mutty lall paul executed the promissory note.3. in his evidence-in-chief he said in distinct terms that the amount of rs. 5,000 was a.....
Judgment:

Ameer Ali, J.

1. This is an action by an attorney of this Court upon a promissory note dated the 15th of December 1897 executed by one Mutty Lall Paul, since deceased.

2. Mutty Lall Paul died on the 2nd of January 1898, and the suit is brought against his heirs and representatives for the amount of the promissory note, viz. Rs. 5,000. The plaintiff's case is that he acted as Mutty Lall Paul's attorney from February 1893 until his death, that he helped him in discovering a forged release and in other ways assisted him in obtaining a decree in the Court of the Subordinate Judge of Alipore declaring the said release to be a forgery, and that in recognition of his Work in connection with these matters Mutty Lall Paul executed the promissory note.

3. In his evidence-in-chief he said in distinct terms that the amount of Rs. 5,000 was a reward to him, that he had demanded Rs. 10,000, but the deceased fixed it at Rs. 5,000.

4. The promissory note was prepared in his office and written by one of his clerks, taken by him to Mutty Lall Paul on the 15th of December, and was executed by the deceased on that date in the presence of his son Sarat, and one Satish Chunder Soor. The defendants to this action are the widow of Mutty Lall Paul, named Luckhimoni Dassee, and his sons by her. Mutty Lall Paul also left three sons by a predeceased wife, who are also parties to the suit. These latter contend that the promissory note is void for the following reasons:

(i) because it was obtained under circumstances which showed undue influence;

(ii) that Mutty Lall Paul was at the time not in a fit condition to understand the nature of his act; and

(iii) on the ground that there was no consideration for the note.

5. This in substance represents their contentions. The minor defendants through their Counsel left the matter to the Court. The other defendants have not raised any serious objection. Their attitude, however, is explained by the fact-that the plaintiff is acting as their attorney in certain testamentary proceedings which are pending in this Court in consequence of a will propounded on behalf of Sreemutty Luckhimoni Dassee, which the sons of Mutty Lall Paul by the predeceased wife contend is a fictitious document.

6. The question therefore involved in this case turns upon, the well-recognized rule of law that an attorney is not entitled to any donation irrespective of his just and legitimate costs during the subsistence of the relationship.

7. The plaintiffs case is that some time in 1895 he was instructed by Mutty Lall Paul to obtain for him a loan on the mortgage of his property. He went to another attorney of this Court, since deceased, named Jadub Chunder Dutt, to help him to raise the loan sought for by Mutty Lall Paul. Jadub Chunder Dutt expressed his willingness to assist the plaintiff, who accordingly took the papers to him for the purpose of showing Mutty Lall Paul's title to the properties proposed to be mortgaged. Jadub Chunder Dutt upon looking into the papers discovered that Charoo Chunder Paul, one of the defendants in the present case, and one of the sons of Mutty Lall Paul, had already tried to raise money on the same-properties upon the basis of a release a copy of which was given to the plaintiff. This information was brought to Mutty Lall Paul, who thereupon asked the plaintiff to enquire and find out the author of the fabricated document, but the plaintiff admits he was unsuccessful in his efforts to discover the genesis of the forgery. I am giving merely the substance of his evidence.

8. A suit was subsequently brought by Mutty Lall Paul in the Subordinate Judge's Court at Alipore which was practically undefended and a decree was made setting aside the document.

9. In the course of this suit, the plaintiff says, he on various occasions saw the pleaders of Mutty Lall Paul engaged in the Alipore case and helped them with suggestions and advice. He was asked, if he had entered in his day-book or day-books the various works which he had done for Mutty Lall Paul in connection with the discovery of the forgery or the prosecution of the suit in the Alipore Court. He stated that he entered some of the items, but omitted others. He admitted that as an attorney it was most irregular on his part not to enter in his day-book all the work he did for his client.

10. In explanation of his laches or omission, whatever it may amount to, he said that, as he was promised by Mutty Lall Paul a lump sum for his labours, he did not think it necessary to enter the items of work from time to time as they were done. Towards the end of his evidence, when- pressed with the difficulty which he had created for himself by the omission to which I have referred, he was obliged to state that part of the work was done by him as attorney and part as an agent.

11. This position I cannot accept. An attorney cannot split up his functions in the way suggested. I have no doubt upon the evidence that what the plaintiff stated in chief represents the correct view of the matter, viz., that Rs. 5,000 was fixed, by whomsoever it be, as his reward in recognition of his services to Mutty Lall Paul.

12. The plaintiff's demand cannot be regarded as moderate. He asked for Rs. 10,000. Naturally he overestimated his services, but the plaintiff suggests that the deceased in the exuberance of his gratitude fixed it at Rs. 5,000. The question then is, the facts being as stated above, whether I ought to allow his claim.

13. The principle which regulates contracts of this nature between solicitors and their clients during the subsistence of the relationship has been enunciated over and over again in the English Courts.

14. In the case of Tyrre'l v. Bank of London (1862) 10 H. L. C. 26, 44. Lord Westbury distinctly laid down that 'There is no relation known to Society of the sduties of which it is more incumbent upon a Court of Justice trictly to require a faithful and honourable observance than the relation between solicitor and client;' and he added: 'I earnestly hope that this case will be one of the many which vindicate that rule of duty which has always been laid down, namely, that a solicitor shall not, in any way whatever, in respect of the subject of any transactions in the relations between him and his client, make gain to himself at the expense of his client, beyond the amount of the just and fair professional remuneration, to which he is entitled.'

15. In O'Brien v. Lewis (1862) 32 L. J. Ch. 569., a gift by a client to his solicitor during the subsistence of the relationship was set aside. The game rule was applied in Holman v. Loynes (1854) 4 De G. M. & G. 270. to a sale.

16. The general principle relating to matters of this nature is enunciated in Rhodes v. Bute (1865) L. R. 1 Ch. A. C. 252, 257. At p. 257, Turner L. J. says as follows: 'I have thought it right to enter thus minutely into the facts of the case for three reasons,--first because the case in my view of it is of no little importance in its I bearing upon the principles of the Court with reference to cases of persons standing in confidential relations.' And he goes on to say: 'With respect to the first of these reasons I take it to be a well-established principle of this Court 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 persons by whom the benefits have been conferred had competent and independent advice in conferring them.'

17. In this connection it may be observed that in the case before me the plaintiff does not allege that Mutty Lall Paul had any competent or independent advice to measure the amount of service rendered to him by the plaintiff as against the reward he was proposing to give.

18. In Morgan v. Minett (1877) L. R. 6 Ch. D. 638. Vice-Chancellor Bacon held 'That the relation of solicitor and client existed between Mr. Minett and the testator is not called in question in the slightest degree. It is not said that the relation prevents a client bestowing his bounty upon his solicitor, but what the law requires is Chat considering the enormous influence which a solicitor in many cases must have over his client, in order to give validity and effect to a donation from a client to his solicitor, that relation must be severed.' In Liles v. Terry (1895) 2 Q. B. 679. a donation to the wife of a solicitor was set aside on the same ground.

19. On behalf of the plaintiff, however, it was urged that an agreement to take a gross sum in lieu of costs was not void, and that, properly viewed, this promissory note should be regarded in that light, and in support of that proposition learned Counsel for the plaintiff referred to In re Whitcombe (1844) 8 Beav. 140. The remarks of the Master of the Rolls at p. 144 are, however, very pertinent to the present enquiry. Whilst upholding on the special facts of that case, the agreement by which the solicitor was allowed to accept 4,000 in gross in lieu of all the costs he had incurred at the time of the settlement of the case, the learned Judge said as follows: 'I must remark on the great danger which solicitors incur when they enter into such arrangements with their clients. An agreement like this between a solicitor and client for taking a fixed sum in satisfaction of all demands for costs is an agreement which may be perfectly good; but this Court, for the protection of parties, looks at every transaction of this kind with great suspicion. The matter may turn out to be perfectly fair and right, still it exposes the conduct of the solicitor to suspicion, and naturally awakens the vigilance and jealousy of this Court, seeing that one party has all the knowledge and the other is in ignorance.'

20. To my mind those remarks are extremely apposite to the present case.

21. It is impossible to suppose that the reward the plaintiff asked for, or which according to him was fixed by Mutty Lall Paul, was not more than commensurable with the work which he seems to have done: but, even if he thought the reward was not excessive, it was still the bounden duty of the solicitor to keep entries of his work, to enable the Court to ascertain whether the reward or remuneration was in proportion to the service rendered.

22. I would desire to impress on all legal practitioners the necessity of strictly complying with the requirements of the law and of keeping in view the policy which regulates the relationship between a client and his legal adviser.

23. The view which I have tried to formulate is enforced in the case of Lawless v. Mansfield (1841) 1 Dru. & War. 557, 605., which was cited by the plaintiff's Counsel. That case to my mind instead of supporting the plaintiff shows the general rules observed by the Court. At p. 605 the learned Chancellor said as follows; 'Now, I take it, that these two propositions are perfectly clear in law: first, that where the relation of attorney and client subsists, in questions of accounts between the parties, the common rule does not prevail; though the party only alleges generally that the accounts are erroneous, the Court will make a decree opening the accounts, if sufficient cause is shown; and, secondly, that a solicitor, to whom his client has given bonds or bills, cannot produce those securities, and say, as a third person might, they prove the existence of his debt; but from the relationship in which the parties stood, and the alarm of this Court, lest by means of such relationship any undue influence should have been exerted, the solicitor is bound, irrespective of his securities, to prove the debt, for which those securities were given.'

24. The case of Holditch v. Carter (1873) L. R. 3 P. & D. 115. is totally different. That was a testamentary suit and a compromise was effected. By the agreement arrived at between the defendant and her opponents she agreed to stop the litigation on their paying amongst other things for the agreed costs of the solicitor. The learned Judge stated that it was the same as if she had received with one hand and paid it over to the attorney with the other and so came under the rule that bills once paid cannot be taxed except under special circumstances. As I said already, that case is wholly different from the present.

25. In re Taylor (1891) 1 Ch. 590. has no bearing on the question for determination before me.

26. It is absurd to say that the plaintiff detected the forgery. He got some information from Jadub Chunder Dutt which he conveyed to Mutty Lall Paul. He seems to have also gone to the police on behalf of the deceased and had various conferences with him and his mofussil advisers in connection with the suit in the Alipore Court. This is all the work he appears to have done.

27. On the facts therefore I have no hesitation in coming to. The conclusion that this sum which is purported to be secured by the promissory note is a reward for whatever work or services he had rendered to the deceased at that period, and having regard to the policy of the law and the rule to which I have referred, a rule the value of which cannot be under-estimated, and which, so far as I am concerned, will be invariably enforced in this Court, I must hold that the plaintiff is not entitled to recover on the promissory note.

28. Then arises the question whether the plaintiff is or is not entitled to any relief in the present action with regard to the work actually done by him, and to his just and proper professional remuneration. Mr. Robinson for the defendants contended that to give him relief on that basis would be altering the nature of the action.

29. There is a prayer for general relief in the plaint; and although the action is brought on the promissory note, the circumstances show that the plaintiff undoubtedly did some work for Mutty Lall Paul, and I am inclined to hold that, instead of referring the plaintiff to another action, I ought to give him relief on that basis in the present suit.

30. I would therefore refer it to the Registrar, who is also the Taxing Officer, to enquire what was the work done by the plaintiff and what is the just and fair professional remuneration to which he is entitled for his services to Mutty Lall Paul in connection with the matters referred to in this suit.

31. The Registrar will then call on the plaintiff to submit his bill of costs and will thus be able to dispose of the matter in accordance with the practice.

32. A final decree will be made when the report is submitted.

33. The question of costs is reserved.


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