PETITIONER:
JOHN D’SOUZA
Vs.
RESPONDENT:
EDWARD ANI
DATE OF JUDGMENT17/12/1993
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
SAWANT, P.B.
CITATION:
1994 AIR 975 1994 SCC (2) 64
JT 1993 Supl. 327 1993 SCALE (4)702
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
S. RATNAVEL PANDIAN, J.- The appellant who is an Advocate
in Bangalore practicing since 1942 was proceeded against for
professional misconduct on the basis of a complaint dated
November 7, 1986 lodged by the respondent, Mr Edward Am with
the Karnataka State Bar Council (Bangalore) under Section 35
of the Advocates Act alleging that the appellant with whom a
will dated July 1, 1968 executed by his mother-in-
66
law, Mrs Mary Raymond was entrusted for safe Custody against
receipt dated July 5, 1968 bearing Seriai No. 576 in his
register of Wills (marked as Ex. P-1) refused to return
that will In spite of two letters dated January 4, 1982 and
April 15, 1986 demanding the appellant to hand over the will
kept in his custody and that the appellant thereby has
committed professional misconduct.
2. The synoptical resumption of the case which has given
rise to this appeal may be briefly stated. One, Mr N.E.
Raymond and his wife, Mrs Mary Raymond were the clients of
the appellant. Mrs Mary Raymond during her lifetime got her
will drafted by the appellant and entrusted the same after
execution with the appellant in respect of which the
appellant had given a receipt dated July 5, 1968 vide Ex.
P-1. The fact that the will has been deposited with the
appellant is supported by an entry in the register of Wills
maintained by the appellant. The execution had appointed
her husband as the executor. Her husband, N.E. Raymond died
in the year 1974. Mrs Mary Raymond changed her lawyer, the
appellant herein and engaged one Mr George DaCosta as her
advocate. According to the respondent, who is none other
than the son-in-law of Mrs Mary Raymond and who claims to be
the legal representative of her estate that when Mr George
DaCosta requested the appellant in 1978 to let him have his
client’s will, the appellant denied having it. Thereafter,
Mrs Mary Raymond was obliged to make another will prepared
by Mr George DaCosta on June 24, 1978.
3. It is the case of the respondent that he wrote two
letters to tile appellant of which one dated January 4, 1982
was sent on behalf of Mrs Mary Raymond under Certificate of
Posting from Manchester (U.K.) marked as Ex. P-6 and
another letter dated April 15, 1986 by himself under
Registered Post with A/D marked as Ex. P-8. Both the
letters were addressed to the appellant requesting him to
return the will dated July 1, 1968. But the appellant did
not reply to both the letters and kept conspicuous silence.
4. The second will executed in 1978 was probated on
February 21, 1984 after the death of Mrs Mary Raymond on
October 29, 1983.
5. On being aggrieved at the conduct of the appellant in
not replying to his letters and returning the will kept in
his custody, the respondent filed a complaint dated November
7, 1986 before the Karnataka Bar Council. By a Resolution
No. 110 of 1987 on July 12, 1987, the State Council rejected
that complaint holding that there was no prima facie case
made out. The respondent preferred a revision before the
Bar Council of India which by its order dated November 20,
1988 set aside the order of the State Bar Council and
allowed the revision holding that there existed prima facie
case of misconduct against the respondent (advocate) and
remitted the matter to the Disciplinary Committee of the
State Council.
6. Pursuant to the order of the Bar Council of India, the
parties appeared before the Disciplinary Committee of the
State Bar Council. The appellant filed his reply on July 3,
1989 to which the respondent filed his rejoinder on August
12, 1989. The Disciplinary Committee of the State Bar
Council by
67
its order dated June 7, 1990 again held that the respondent
was not guilty of professional or other misconduct within
the meaning of Section 35 of the Advocates Act, 1961 as
alleged by the appellant.
7. Again being dissatisfied with the said order of the
Disciplinary Committee, the appellant preferred an appeal
before the Disciplinary Committee of the Bar Council of
India which by its order dated June 4, 1993, disagreed with
the findings of the State Bar Council and allowed the appeal
by setting aside the order dated June 7, 1990 and held that
“the complainant (the present appellant), has succeeded in
proving that the respondent committed professional
misconduct and is hereby liable under Section 35 of the
Advocates Act, 1961″. The Disciplinary Committee further
suspended the appellant herein from practice for a period of
one year.
8. The appellant filed a Stay Petition No. 24 of 1993
under Section 14(2) of the Advocates Act before the
Disciplinary Committee of the Bar Council of India praying
to stay the operation of its order dated June 4, 1993
suspending him from practice, so as to enable him to prefer
an appeal before this Court. The Disciplinary Committee of
the Bar Council of India vide its order dated June 23, 1993
suspended the impugned order for one month from the date of
communication of the order.
9. The present appeal has been preferred by the appellant
along with an application for stay. When the matter was
mentioned on July 20, 1993, this Court stayed the operation
of the impugned order.
10. Mr Ram Jethmalani, the learned senior counsel appearing
for the appellant after taking us through the relevant
documents assailed the impugned findings contending that the
respondent has not substantiated the allegations that Mr
DaCosta requested the appellant to let him have the will Of
Mrs Mary Raymond entrusted to him and that the appellant
denied of having it. On the other hand, the letter dated
May 1, 1990 written by Mr George DaCosta to the Chairman,
Disciplinary Committee of Karnataka BarCouncil stating, “I
should like to clarify my own position and to emphasize and
state very clearly that at no time did I make any request of
John D’Souza for the return of her 1968 will nor did she
require it. There was, therefore, no question arising for
Mr John D’Souza having denied being in possession of it. Mr
John D’Souza made no such denial…… unambiguously
falsifies the allegations of the respondent.
11. According to Mr Jethmalani, the will in question had
been revoked and returned on January 13, 1982 presumably to
Mrs Mary Raymond who was then alive. That fact is supported
by an endorsement made by the appellant’s wife in the
register of Wills and that even assuming that the will had
not been returned, the appellant cannot be said to have
committed any breach of trust by retaining the revoked will
which after its revocation had become a mere scrap-paper;
that the appellant cannot even by imagination be said to
have entertained any dishonest or oblique motive or Carried
any pecuniary profit by keeping the revoked will which had
become res nullius and indisputably was a worthless paper
having no value.
68
12. In passing, Mr Jethmalani stated that his client though
admits of having received the second letter (Ex. P-8)
disputes the demand of will by his alleged first letter
dated January 4, 1982 and adds that the respondent has not
proved the charges by examining Mr DaCosta.
13. The respondent appearing in person took much pains to
sustain the findings of the Disciplinary Committee of the
Bar Council of India submitting inter alia, that the
appellant who kept the will in his custody was in the nature
of a Trustee and as such he was entitled to return the will
on demand and that the question of oblique motive or private
gain has no relevance. As neither the testatrix, Mrs Mary
Raymond nor the respondent, being the legal representative
of the estate of the testatrix, had abandoned the will which
was their property, it cannot be said that the will had
become res nullius. He asserts that the appellant should
have received the first letter or at least deemed to have
received that letter (Ex. P-6) which had been posted from
Manchester (U.K.) under Certificate of Posting (Ex. P-6A).
14. According to the respondent, the facts and
circumstances of the case have amply proved that the
appellant had blatantly violated the relationship of the
client and the attorney created under law and betrayed the
trust and confidence reposed by the respondent in him.
15. Both parties in support of their respective pleas cited
certain decisions which we do not recapitulate here as we
have decided to dispose of the matter purely on the facts of
the case. However, it may be mentioned that Mr Ram
Jethmalani in his reply has given tip the argument that the
document had become res nullius but reiterated his stand on
the other grounds.
16. Though the State Bar Council has found that the conduct
of the appellant has not amounted to “misconduct much less a
professional misconduct to punish the respondent” and that
“he has not proved any ‘mens rea’ ” on the part of the
appellant in withholding the will and given too much
emphasis on the point of delay and the strained relationship
between the parties, observed:
“However we hope the respondent will be
hereafter careful in dealing with this type of
matters.”
17. The Disciplinary Committee of the Bar Council of India
after examining the matter in detail disapproved the
findings of the State Bar Council holding thus:
“The Disciplinary Committee of the State Bar
Council gave too much emphasis on the point of
delay in filing the complaint. It also
referred to some strained relations between
the parties. We are not inclined to agree
with these findings. A mere delay or strained
relations between the parties per-se would not
make a complaint false. These are the points
which should put us on ground while
appreciating the contentions raised on behalf
of either side. But in a case in which most
of the facts are admitted there is little to
do except holding that nonreturn of the
property of the complainant does not amount to
professional misconduct on the part of the
Advocate. The respondent
69
tried to submit that will had been returned
but no convincing evidence to that effect was
produced.”
18. On the basis of the above findings, the impugned order
was passed. The fact that Mr George DaCosta requested the
appellant to hand over the will cannot be said to be an
afterthought and invented only at the time of filing the
complaint. Even in Ex. P-6, it is mentioned that, “Mr
George DaCosta requested the appellant to hand over the will
of Mrs Mary Raymond prepared in 1968 and held in his safe
custody and that it was understood that the appellant denied
that the will was in his custody”. In the second letter
dated April 15, 1986 marked as Ex. P-8 which has been
admittedly received by the appellant, the facts of demand
made by Mr DaCosta to return the will and the appellant
having denied of it are made mention of. In addition, the
respondent has stated that he wrote a letter on January 4,
1982 to which there was no reply. The only document on
which the appellant attempts to substantiate his case that
there was no such demand as well as denial by him is the
letter dated May 1, 1990 sent by Mr DaCosta to the State Bar
Council. This letter has been sent only after the
proceedings before the State Bar Council had been completed
but, of course, before the order was passed. However, the
order of the State Bar Council did not have any reference to
this letter, obviously for the reason that this document was
not produced before the proceedings were over. Though Mr
Jethmalani has insisted that this letter was filed only on
consent, the very fact that the letter did not come into
existence earlier to May 1, 1990 and that Mr DaCosta was not
examined, demands not to place much reliance on this letter,
especially in the teeth of the averments found in Ex. P-6
and Ex. P-8. As pointed out by the Bar Council of India,
there was no convincing evidence that the appellant had
returned the will. As pleaded by the respondent, the will
though revoked was the property of Mrs Mary Raymond and on
her death had become his property and that the said document
was not abandoned by either of them.
19. It is disheartening to note that the documentary
evidence and the circumstances bearing the case leave an
irresistible inference that the entry dated January 13, 1982
in the register of Wills should have been manipulated as if
the document had been returned. No doubt, in a disciplinary
proceeding of this nature, the rule is that the charging
party has the burden of proving the charge of misconduct of
the respondent. On an overall evaluation of the facts and
circumstances of the case we hold that the respondent has
proved that the appellant had not returned the will. It has
to be remembered, in this connection, that his earlier
stand was that he did not have the will. He changed the
position later and came out with the case that he had
returned it in 1982 and for this purpose he relied upon an
endorsement made by his wife in his register of documents.
We are left with the irresistible conclusion, in the
circumstances, that he had not returned the will though
demands were made first by the testatrix, then by her new
lawyer and by the respondent who was also holding the
power of attorney from the testatrix when he wrote the first
letter and was the executor appointed under the second will.
The
70
conduct of the appellant in not returning the will even on
demand is unworthy of an advocate belonging to a noble
profession. The appellant has no right to withhold the
will. On the other hand, he was bound in duty to return the
said will when demanded because the instrument was entrusted
to his custody by the testatrix, Mrs Mary Raymond only on
trust.
20. Under these circumstances, we do not find any reason
much less compelling reason to interfere with the impugned
order of the Disciplinary Committee of the Bar Council of
India. The Appeal is accordingly dismissed and the stay
granted by this Court shall stand vacated. No costs.
72