Topic: John D Souza v Edward Ani - Failure to return will excecuted and kept in safe custody

John D Souza v Edward Ani
Equivalent citations: 1994 AIR 975, 1994 SCC (2) 64 - Bench: Pandian, S.R. (J), Sawant, P.B. - Citation: 1994 Air 975 1994 Scc (2) 64, Jt 1993 Supl. 327 1993 Scale (4)702 - Date of Judgment: 17/12/1993


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 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.

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 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 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.