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Johurmull Bhutra Vs. Kedarnath Bhutra - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1927Cal714
AppellantJohurmull Bhutra
RespondentKedarnath Bhutra
Cases ReferredNeale v. Gordon Lennox
- .....taken the suit could not progress very much further.8. that being the general character of the suit, learned counsel on either side agreed upon the terms of settlement which i shall have to refer to in detail. those terms settled the shares of the parties. they settled the joint estate. they agreed that the garden-house at lilooah was debutter property. accounts were agreed upon to be taken by the master and then the terms went on to appoint the plaintiff's attorney and the defendant's attorney receivers of the joint, estate without security and of the debuttar property without security on a. remuneration of 5 per cent, on the gross realization, but the receivers were not to charge any commission on the debuttar property. the same two gentlemen were appointed commissioners of.....

Rankin, C.J.

1. This is an application brought on the 22nd. February 1927 to set aside a consent decree passed : in a partition suit on the 24th January 1927. The suit was brought by the infant plaintiff Kedarnath Bhutra by his mother as next friend. The defendant Johurmull Bhutra is the brother of the plaintiff's deceased father Hira, Lal, and the general character of this suit was that the plaintiff claimed that since the death of his father Hira Lal and indeed before, the defendant had been is occupation and enjoyment of properties which had been joint between the two brothers. It would seem to be accurate that before Hira Lal's death the brothers had separated and that there bad been no actual division of the ijmali property.

2. It may be mentioned that in the year 1900 Hira Lal and the defendant had executed a deed of trust whereby a certain property at Lilooah had been conveyed to the trustees on behalf of a certain deity. So far as can be ascertained the trustees at the relevant time were the defendant, the plaintiff's mother and a third person.

3. The suit having been brought in May 1925 a written statement was put in by the defendant, and in that written statement it is necessary to notice that the defendant set up the debuttar deed. He set up that there was an agreement to take lease of certain premises, No. 7, Bysack Lane, which premises should be included in the joint property. The defendant admitted also that, as the senior male member of the family, he had been realizing rents of the joint; estate. He stated that he had always been ready and willing to render proper accounts and to make over the plaintiff's share to the plaintiff on getting proper discharge. Among other matters the defendant stated that he had never objected to an amicable partition of the joint estate, that the present suit was unnecessary and that he left it to the judgment of the Court as to whether a separation was to the benefit of the infant plaintiff or not.

4. That written statement was filed in June 1925, and in January 1927 the case came on for hearing. Mr. Langford James was the senior counsel on behalf of the plaintiff and the defendant's senior counsel was Mr. Sarkar. It appears that on the date on which the case was on the list, those learned Counsel entered into negotiations on their clients' behalf, one with the other. They appear to have done so shortly before the case was called on, either in the corridor of the Court or in the bar library. They appear to have reduced to writing certain terms as terms upon which they were prepared to settle the case. They came in accordingly when the case was called on before the learned Judge. They explained to him that the case was settled. They consented before him to the terms of settlement and, according to the affidavit of one witness, the learned senior counsel for the defendant stated that he was settling the matter on his own responsibility.

5. The actual order of the consent decree which was passed on the 24th January recites that

this Court being of opinion that it would be for the benefit of the infant plaintiff that the following decree should be made, it is declared with the consent of the parties by their respective advocates that the said terms ought to be carried out and the same are ordered and decreed accordingly,

and it proceeds thereafter in term of the compromise.

6. Now, the defendant, it would seem, was extremely dissatisfied with the settlement which had been made on his behalf and he lannched. a motion out of which this appeal arises on the 22nd February 1927. It would appear from his own account that he was determined not to settle the case at all and that he was much assisted in tb.13 attitude by the help of a retired vakil, a Mr. Mukherji. I will assume in the defendant's favour that when he found that the casa, instead of being fought was settled, he was extremely surprised, this form of proceeding not doubtless having come to his notice before and I will assume also that the same surprise might very well have affected Mr. Mukherji.

7. The facts, however, are that the case was a partition suit to whish there was no answer at all. The property jointly possessed by the partie3 was agreed. The shares were agreed. There was a faint suggestion that because the plaintiff was an infant the defendant might be able to resist partition and keep his hold upon the property; but there is nothing whatever in this point and it was indeed a ca e in which any lawyer of competent experience would say that the sensible thing was to get a preliminary decree for accounts, because the defendant's liability to account to a. certain extent was admitted, There was, therefore, to begin with, nothing to fight about and until accounts were taken the suit could not progress very much further.

8. That being the general character of the suit, learned Counsel on either side agreed upon the terms of settlement which I shall have to refer to in detail. Those terms settled the shares of the parties. They settled the joint estate. They agreed that the garden-house at Lilooah was debutter property. Accounts were agreed upon to be taken by the master and then the terms went on to appoint the plaintiff's attorney and the defendant's attorney receivers of the joint, estate without security and of the debuttar property without security on a. remuneration of 5 per cent, on the gross realization, but the receivers were not to charge any commission on the debuttar property. The same two gentlemen were appointed commissioners of partition on the usual remuneration and-a common form order was made as to costs.

9. Now, the contention on the part of the defendant who seeks to set aside this settlement is that the agreement by counsel was unauthorized because it was an agreement made out of Court and he has relied upon the circumstance that instead of the negotiations between learned Counsel waiting to begin after the case had been called on for hearing and being continued while the Judge was sitting, what took place was that prior to the case being called on, this matter was settled more conveniently in the corridor of the Court or in the bar library by learned counsel. The contention is that notwithstanding that having reduced their agreement into writing, they came before the Court and assented coram judice to these terms as the terms which they had prepared for that purpose, and notwithstanding that it was their duty (which they in? fact appear to have discharged) to explain to the Court that these terms were for the benefit of the infant and to satisfy the Court to that effect before these terms could be binding, the compromise was invalid as being a compromise made out of Court.

10. As usual, these contentions are based on decided cases which very commonly have nothing to do with similar facts. There is a passage in Matthews v. Munster [1887] 20 Q.B.D. 141, in which Lord Esher says that the duty of counsel is to act for his client in Court and to advise him out of Court. There is the case of Green v. Crockett [1865] 34 L.J. Ch. 606, where a suit was adjourned and the two solicitors on either side instructed their leading counsel to try to settle it. The counsel met in the chamber of one of them and drew up minutes of a consent decree. In that case the client on the one side hearing of the arrangement objected. Thereupon the other party put in a petition and asked to have a decree upon the basis of the terms to which the other party was objecting. It was held in these circumstances, there being no agreement coram judice at all, that the agreement was not binding between the parties. There is a further case where the attorney on one side met counsel on the other side in the street and it was held that the authority of counsel did not extend to such a case as that. But there is no authority, which at all suggests that the proceeding which was adopted in the present case is outside the authority of counsel. It does not vitiate the consent made to the Court and in the presence of the Court that counsel on either side have considered the matter in the corridor or in the bar library.

11. The case of Askaran Chautmal v. The E.I. Ry. Co. : AIR1925Cal696 decided by Mr. Justice Page is again clearly distinguishable on the facts. A suit had been on the list for hearing on the 11th of November 1924, but was adjourned by consent. On the 20th or 21st of November there was a meeting, apparently, in the bar library. A settlement was arrived at and on the 21th of November the defendant objected to the settlement. On the 25th of November this objection was mentioned in Court and on the 3rd of December the plaintiff launched a motion for the recording of the settlement. That is a case where one side in spite of the objection of the other was asking the Court for the first time to pass a decree in accordance with the compromise. It is not a case which was ever settled in Court coram judice.

12. In my judgment, therefore, on this point the judgment of the learned Judge is quite correct and should not be disturbed. This point was the only point taken at the hearing of this motion before Mr. Justice Buckland. It is true that in the affidavits before him other points or materials for other points were contained. The main effort of the petition and the affidavits filed on behalf of the defendant was to make out that he had put a special restriction upon the authority of his counsel, that his counsel had shown signs at consultation of being disposed to settle the case and that he had definitely refused in substance the very settlement which his counsel afterwards put forward. Mr. Chaudhuri who was in charge of the defendant's case before the learned Judge very wisely refrained from putting forward this part qt the case at all, and it is not mentioned in the learned Judge's judgment. I have no doubt that the learned Counsel took this somewhat noticeable action for the very good reason that he came to the conclusion that a perusal of the affidavits would satisfy the Court that that contention was untrue and I hold it to be entirely and somewhat palpably untrue that any such restriction was put by the defendant upon the authority of his senior counsel.

13. In this Court, however, we have been asked to entertain various objections and to two of them only will I refer. The authority of counsel to compromise a suit coram judice in Court is limited to matters involved in the suit and it does not extend to collateral matters. If a bargain is to be made so as to bind a client upon collateral matters then learned Counsel should take care to get express authority from his client. The frame of this suit is a partition suit. It is true that in the plaint the Lilooah property was put forward as an item in the joint estate to be partitioned. In the written statement is set up the dead of trust by Hira Lal and the defendant making it debuttar and in the terms of settlement it is agreed that the property is debuttar. The question arises whether to appoint a receiver of the debuttar property wag a matter within the scope of this partition suit or was a matter merely collateral to the suit. I have the greatest difficulty in understanding why receivers should have been appointed of this debuttar property at all and I am quite clear that it is a matter collateral to the suit and not within the scope of the general authority of learned Counsel engaged in this particular partition suit. That being so, it seams to me that that part of the term? of compromise was as a matter of law outside the authority of learned Counsel and that in this respect and on this particular paint the learned Counsel was under a misconception as 60 the reach of his general authority.

14. I do not think that we need consider what the effect of the inclusion of this part of the bargain in the decree would be in law. As a matter of fact, learned Counsel did purport to agree to the appointment of these gentlemen as receivers of the debuttar property. It may be that that is a severable part of the agreement, but the Court below has made a decree to carry out this among other terms of the compromise and, so far as this term is concerned, I think that the compromise was without authority. The decree must, I think, be interfered with in that particular at least and as we have to interfere with the decree it 13 necessary for us to consider carefully to what extent we shall interfere with this decree. The question is not merely one of contract whether fchi3 term is severable or is not severable. The question is a question of the Court appointing a receiver-the Court appointing a commissioner of partition whose award as commissioner will be a part of the Court's proceeding a part of the machinery by which the ease before the Court is to be dealt with. The Court is being asked for its assistance, to use the language of Lord Halsbury in Neale v. Gordon Lennox [1902] A.C. 465.

15. This introduces a further consideration of some little importance. The defendant had employed the firm of attorneys, Messrs. Dutt and Sen, to act as his attorneys in this ease on his behalf, and Mr. Susil Sen was a partner in that firm. He was a person acting as attorney for the defendant. He and the opposing attorney were appointed receivers of the joint estate and were made joint commissioners of partition-There is objection to appointing these attorneys as receivers. The objection-is that an attorney has a certain duty to his client : to see to the rights of the client in the matter of the receiver's charges and, indeed it may be in other matters. In the same way Mr. Susil Sen was a parson whom the defendant had appointed to fight his case and to advise him as regards the matters in suit; and when Mr. Sisil Sen is appointed commissioner of partition acting together with the attorney on the other side the defendant will either have to gat somebody else to act as his attorney on his behalf in matters which the commissioners have to decide or he will have to go without representation. The question is whether an arrangement that interrupts the relationship of attorney and client in the manner in which this arrangement does is one that should be forced upon the client now that the Court is for the first time made aware that the client is objecting. The learned Judge who made the consent decree had no reason to suppose that the client was objecting. It is another question whether, in the circumstances of this ease, it being proved that the client has objected at once, this Court ought to confine its interference with this decree to the here question of the receivership of the debuttar property. The learned Judge in his judgment has stated that ii was intimated to him that the plaintiff contended that the defendant consented to the settlement. If that means that the plaintiff assented to the particular terms before the Court, that is contrary to the evidence adduced by the defendant himself. There is not only no-evidence to this effect, but the evidence is the other way. This, therefore, is a case where it may be taken for certain that the defendant was not personally consulted and the matters must rest on the exercise by the learned Counsel of his general authority, In my judgment to make the two attorneys receivers and commissioners of partition is a very strong exercise of the general authority of counsel to settle a case. The interruption of the client's arrangement as regards his defence is so direct and fundamental that it would be well if no such bargain was even made without the express agreement of the client on either side. Having regard to this feature, I am of opinion that we have jurisdiction to set aside, on certain terms, the decree that was passed by consent on the 24th of January 1927.

16. It is quite true that the basis of the exercise of discretion in the case of Neale v. Gordon Lennox [1902] A.C. 465 was the fact that the plaintiff in that case had expressly stipulated that no settlement should be made without the withdrawal of the imputations made against her. The element of special restriction is not, as I hold, present in this case. But I do not think that takes the case out of the doctrine of Neale v. Gordon Lennox [1902] A.C. 465. Even where there is a special restriction, unless it be communicated to the other side, the party will' ordinarily be bound. It is the overriding power and duty of the Court to make a proper order for the conduct of its own business which 13 the ground of the doctrine laid down by the House o Lords in that case; and although I do not say that the present case is so strong a case as Neale v. Gordon Lennox [1902] A.C. 465, it having been brought to the notice of the Court that the client objects, that the was not consulted on these particular terms, that part of the agreement is put side the general authority which is limited to the suit, and those other parts have the effect of making the attorney a receiver and commissioner, that is enough to justify us in saying that we will sat and the decree. It is quite right, however, that the decree should be set aside on terms as to costs. The defendant must pay all the costs thrown away on the 24th of January 1927 and he must pay all costs of the plaintiff before Mr. Justice Back land and in this Court.

Mitter, J.

17. I agree.

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