Whether plaint filed by brothers claiming interest in property purchased in the name of one brother can be rejected?

 The first and foremost of the circumstance relevant to the question at hand is the fact that the property in question was tenanted by Smt. Stella Martins-mother of the parties before us. It is common ground that at the time of her demise she had not left behind any Will nor is there any other material to suggest that she intended that the tenancy right held by her in the suit property should be transferred to the Appellant to the exclusion of her husband, C.F. Martins or her daughters, Respondents in this appeal, or both. In the ordinary course, upon the demise of the tenant, the tenancy rights should have as a matter of course devolved upon her legal heirs that would include the husband of the deceased and her children (parties to this appeal). Even so, the reason why the property was transferred in the name of the Appellant was the fact that the Corporation desired such transfer to be made in the name of one individual rather than several individuals who may have succeeded to the tenancy rights. A specific averment to that effect was made by Plaintiffs-respondents in para 7 of the plaint which was not disputed by the Appellant in the written statement filed by him. It is, therefore, reasonable to assume that transfer of rights in favour of the Appellant was not because the others had abandoned their rights but because the Corporation required the transfer to be in favour of individual presumably to avoid procedural complications in enforcing rights and duties qua in property at a later stage. It is on that touchstone equally reasonable to assume that the other legal representatives of the deceased-tenant neither gave up their tenancy rights in the property nor did they give up the benefits that would flow to them as legal heirs of the deceased tenant consequent upon the decision of the Corporation to sell the property to the occupants. That conclusion gets strengthened by the fact that the parties had made contributions towards the sale consideration paid for the acquisition of the suit property which they would not have done if the intention was to concede the property in favour of the Appellant. Superadded to the above is the fact that the parties were closely related to each other which too lends considerable support to the case of the Plaintiffs that the Defendant-appellant held the tenancy rights and the ostensible title to the suit property in a fiduciary capacity vis-à-vis his siblings who had by reason of their contribution and the contribution made by their father continued to evince interest in the property and its ownership. Reposing confidence and faith in the Appellant was in the facts and circumstances of the case not unusual or unnatural especially when possession over the suit property continued to be enjoyed by the Plaintiffs who would in law and on a parity of reasoning be deemed to be holding the same for the benefit of the Appellant as much as the Appellant was holding the title to the property for the benefit of the Plaintiffs.

25. The cumulative effect of the above circumstances when seen in the light of the substantial amount paid by late Shri C.F. Martins, the father of the parties, thus puts the Appellant in a fiduciary capacity vis-à-vis the said four persons. Such being the case the transaction is completely saved from the mischief of Section 4 of the Act by reason of the same falling under Sub-Section 3(b) of Section 4. The suit filed by the Respondents was not, therefore, barred by the Act as contended by the Learned Counsel for the Appellant. The view taken by the High Court to that effect is affirmed though for slightly different reasons.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6645 of 2003

Decided On: 27.04.2012

 Marcel Martins  Vs. M. Printer and Ors.

Hon'ble Judges/Coram:

T.S. Thakur and Gyan Sudha Misra, JJ.

Citation: (2012) 5 SCC 342.

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Whether an Advocate is more than agent of his client?

Apart from the above, in our view lawyers are perceived to be their client's agents. The law of agency may not strictly apply to the client-lawyer's relationship as lawyers or agents, lawyers have certain authority and certain duties. Because lawyers are also fiduciaries, their duties will sometimes more demanding than those imposed on other agents. The authority-agency status affords the lawyers to act for the client on the subject matter of the retainer. One of the most basic principles of the lawyer-client relationships is that lawyers owe fiduciary duties to their clients. As part of those duties, lawyers assume all the traditional duties that agents owe their principals and, thus, have to respect the client's autonomy to make decisions at a minimum, as to the objectives of the representation. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client's instructions rather than substitute their judgment for that of the client. The law is now well settled that a lawyer must be specifically authorised to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise/settlement. To put it alternatively that a lawyer by virtue of retention, has the authority to choose the means for achieving the client's legal goal, while the client has the right to decide on what the goal will be. If the decision in question falls within those that clearly belong to the client, the lawyers conduct in failing to consult the client or in making the decision for the client, is more likely to constitute ineffective assistance of counsel.

The Privy Council in the case of Sourendra Nath Mitra v. Tarubala Dasi MANU/PR/0016/1930 : AIR 1930 PC 158 has made the following two observations which hold relevance to the present discussion:

Two observations may be added. First, the implied authority of counsel is not an appendage of office, a dignity added by the Courts to the status of barrister or advocate at law. It is implied in the interests of the client, to give the fullest beneficial effect to his employment of the advocate. Secondly, the implied authority can always be countermanded by the express directions of the client. No advocate has actual authority to settle a case against the express instructions of his client. If he considers such express instructions contrary to the interests of his client, his remedy is to return his brief.

32. Therefore, it is the solemn duty of an advocate not to transgress the authority conferred him by the client. It is always better to seek appropriate instructions from the client or his authorized agent before making any concession which may, directly or remotely, affect the rightful legal right of the client. The advocate represents the client before the Court and conducts proceedings on behalf of the client. He is the only link between the Court and the client. Therefore his responsibility is onerous. He is expected to follow the instructions of his client rather than substitute his judgment.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4360-4361 of 2015 (Arising out of S.L.P. (C) Nos. 9302-9303 of 2013), 

Himalayan Cooperative Group Housing Society Vs. Balwan Singh

Hon'ble Judges/Coram:

H.L. Dattu, C.J.I., S.A. Bobde and Arun Mishra, JJ.

Citation;(2015) 7 SCC 373

Decided On: 29.04.2015

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Whether husband can claim ownership over property purchased in the name of wife?

In the given case before this court when the property was purchased in the name of this plaintiff/appellant in the year 1979 there was no cloud in the marital relationship between the parties. I have already said that evidence is galore that the entire consideration money came from either the defendant personally or from his private limited companies. It is immaterial whether the defendant violated the provisions of the companies act or whether such money was reimbursed to the company. It is true that after purchasing the property the parties shifted to the suit flat and the defendant is still residing there. The marriage between the parties was dissolved on 26.09.1984 that is roughly after six years of the execution of those deeds and the suit was filed on 2nd of July, 1987 that is after a gap of 2 year 9 months of the divorce. Thus, when a fat amount (as per money value of 1978-79) was given to the wife for the purchase of the suit flat this court is satisfied that the husband had good faith on his wife and that the relationship at that point of time was 'fiduciary' one. The plaintiff/appellant was like a 'trustee' vis-a-vis her husband, if he is treated as 'trust'. The cumulative effect of the circumstances noted above, when seen in the light of the substantial amount paid by the defendant/husband that puts the plaintiff/appellant in 'fiduciary capacity' vis-a-vis her husband. Such being the case the transaction is completely saved from the mischief of Section 4 of benami prohibition Act by reason of the same falling under Sub-Section 3(b) of Section 4. Thus, I reiterate that the plea of banami as raised by the respondent/defendant was not, therefore, barred by the said Act of 1988.

IN THE HIGH COURT OF CALCUTTA

S.A. 577 of 2008

Decided On: 02.09.2016

 Debika Chakraborty

Vs.

 Pradip Chakraborty

Hon'ble Judges/Coram:

Indrajit Chatterjee, J.

Citation: AIR 2017 Calcutta 11

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When court will permit opening of account in case of guardian and ward?

 Where a person entitled to an account alleges and proves facts which show that, at any rate in respect of one item, sums other than those received would have been received by the person liable to account but for his wilful neglect or default, the latter will be liable to account not only for what he has in fact received but for what he ought to have received. An intentional default may be held to be wilful if he was careless or forgetful. 'RADHIKAPRASAD v. NANDKUMAR', (supra.) In the case of reopening of accounts, Jessel, M. R. says that

"if the Court is of opinion that errors of sufficient number and sufficient magnitude are shown, it is not necessary that the errors shown should amount to fraud. If they are sufficient in number and importance, whether they are errors caused by mistake or errors caused by fraud, the Court has a right to open the accounts..........When the account is between persons in a fiduciary relation and the person who occupies the position of the accounting party - that is, trustee or agent - is the defendant, it is easier to open the account than it is in cases where persons do not occupy that position - that is to say, that a less amount off error will justify the Court in opening the account.

"..........where you show a single fraudulent entry in the case of persons occupying the position of principal and agent, or trustee and 'cestui que trust', the Court has actually opened an account extending over a greater number of years and closed for a much longer period than the account I have before me.

(Note: It was for twenty years).

"We therefore have this as a sort of guide without laying down any general rule, because every case must depend on its own circumstances, that where the accounts have been shown to be erroneous to a considerable extent both in amount and in the number of items, or where fiduciary relations exist and a less considerable number of errors are shown, or where the fiduciary relation exists and one or more fraudulent omissions or insertions in the account are shown, there the Court opens the account and does not merely surcharge and falsify. 'WILLIAMSON v. BARBOUR',(1877) 9 Ch D 529; 'BHAGWAN BAKSHI SINGH v. DAMODARJI JOSHI',42 All 230. By S. 20 of the Act the defendants stand in a fiduciary relation to the plaintiff ward.

IN THE HIGH COURT OF NAGPUR

First Appeal No. 127 of 1944

Decided On: 05.07.1951

Ramlalsao

Vs.

 Tansingh Lalsingh

Coram:

R. Kaushalendra Rao and Deo, JJ.

Citation:1952 NLJ 278 Nagpur

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What is distinction between rendering of account and settlement of account?

There is a broad distinction between the position where an account is rendered and where an account is stated or settled. 'MADHUSUDAN v. RAKHAL CHANDRA', 43 Cal. 248. In the former case the accounting party must satisfy the Court that the account was correctly rendered i.e. he must support it in Court; but in the latter case the person entitled to an account is bound by the account unless it can be reopened. 'RADHIKAPRASAD v. NANDKUMAR', ILR (1944) Nag 63. As already shown, the accounts are not stated or settled in the instant case and therefore it is not necessary to plead facts which entitles the plaintiff to reopen the settled accounts. But even if that was necessary, there is ample material on record to justify reopening of the accounts on the ground of error, if not on the ground of fraud.

IN THE HIGH COURT OF NAGPUR

First Appeal No. 127 of 1944

Decided On: 05.07.1951

Ramlalsao

Vs.

 Tansingh Lalsingh

Coram:

R. Kaushalendra Rao and Deo, JJ.

Citation:1952 NLJ 278 Nagpur

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Whether offence U/S 409 of IPC is made out when there is no fiduciary relationship between complainant and accused ?

Penal Code, 1860, Section 409 - Offence under--Word "trust" used in Section 409-- Significance of--existence of fiduciary relationship between complainant and accused is necessary.

The word 'trust' is a comprehensive expression which has been used in Section 409 of the Indian Penal Code as covering not only the relationship of Trustee and beneficiary but also that of bailor and bailee, master and servant, pledger and pledgee, guardian and ward and all other relations which postulate the existence of fiduciary relationship between the complainant and the accused. In the instant case neither there exists any such fiduciary relationship between the Cashier and the accused nor does any such relationship exists in respect of the disputed amount between the Company and the accused. Admittedly the Company was the owner of the cash in the chest. There is nothing on the record to show that the Company entrusted the cash of the chest to the accused, 'Entrustment' relationship between them. In the instant case the Cashier who says to have handed over the money to the accused was not the owner and so was not competent to create a fiduciary relationship between himself and the accused. The prosecution has thus failed to prove beyond doubt that the cash which was found short was entrusted to the accused and that they have committed criminal breach of trust.

 Citation: 1983(7)ACR529, 1984 (10) ALR 1, 1983 AWC 957 All, 1984CriLJ76

IN THE HIGH COURT OF ALLAHABAD

Government Appeal Nos. 1697, 1698, 1699 and 1700 of 1978

Decided On: 24.08.1983

 State
Vs.
K.P. Jain

Hon'ble Judges/Coram:
R.A. Misra, J.

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