On an order of reference dated 11-8-47, by Yahya Ali J. this appeal coming on for hearing the Court delivered the following.—
JUDGMENT
The Chief Justice.—In this civil miscellaneous appeal the sole point for decision is whether an Advocate—or a pleader—to whom a vakalatnama is given, has power in the absence of express authorisation to compromise the suit on behalf of the party for whom he appears.
The appeal came before Yahya Ali J. who directed it to be placed before the Chief justice for orders, in light of the conflict in the decided authorities. Hence it comes before this Bench for disposal.
In the Court of the District Munsif of Karkal the plaintiffs claimed possession of some immoveable property as the reversioners of one Keshava Bhatta deceased, the last male holder. During her lifetime, his widow purported to settle the property upon one Puttappayya who, having died, was survived by the five defendants, some of whom claimed the property and were in possession of it. The suit was laid against all survivors. The third and fifth defendants remained ex parte; the first, second and fourth defendants contested the suit on the ground that the property was demised by Keshava Bhatta by will to his widow who consequently had full disposing power over it. The first defendant asserted no interest, alleging that the property had been allocated to the second defendant in a partition. The second and fourth defendants further alleged that moneys had been spent by way of repairs and improvements and, in any event, the expenditure should be reimbursed. The first defendant appeared by a pleader and the second and fourth defendants were represented by an Advocate to whom respectively they gave vakalatnamas signed by each of them. The suit was compromised and a decree was passed upon the terms endorsed upon the plaint, including, that the three contesting defendants agreed there should be a decree for possession. The endorsement was signed by the first and second defendants, by the pleader for the former and by the Advocate for the second and fourth defendants; the fourth defendant was not in Court and did not sign the terms. She disputes the validity of the compromise, so far as she is concerned, alleging she did not agree to it and the Advocate had no authority to effect it on her behalf. No point arises by reason of the second and fourth defendants being represented by the same Advocate and the appeal has been treated and argued as if she had given a separate vakalatnama to the Advocate and he had appeared for her alone.
An appeal by the fourth defendant to the learned Subordinate Judge of South Kanara challenging the validity of the settlement, so far as she is concerned, was allowed; the decree passed against her was set aside and the trial Court was directed to proceed with the trial of the suit with reference to that defendant's defence and decide the matter on the merits. This is an appeal by the plaintiffs against the decision of the learned Subordinate Judge.
The vakalatnama provides that,
“I (fourth defendant) do hereby appoint and retain (the Advocate) to appear for me in the above suit and to conduct and defend the same”.
Then follows, with regard to the suit, express directions for the Advocate to conduct and defend proceedings in any application for execution; appear in all miscellaneous proceedings in the suit until ail decrees or orders are satisfied or adjusted; obtain the return of all documents; draw any monies payable to the client; accept service of notice of all appeals or petitions filed in any Court of Appeal, reference or revision. In all there are six express directions, powers or authorities given in the vakalatnama. There is no reference made to compromise of the suit, but, on the contrary, the Advocate is expressly directed to conduct and to defend it; the other powers or directions are to do the several things, therein mentioned, after a decree had been passed.
Before referring to the decided cases I desire to make two observations. It is difficult to see how an express and explicit direction or power to conduct and defend a suit, which must mean to contest it, inculdes a direction or power to compromise it. The vakalatnama confers, in detail, six separate and distinct powers and the absence of a power or direction to compromise is not without significance.
On behalf of the appellants it was argued that the Advocate's authority to appear for the client, to conduct and to defend the suit, impliedly included authority to compromise it. Reliance for this contention was placed upon Sourendranath Mitra v. Tarubala Dasi (1), where their Lordships of the Judicial Committee held that an Advocate, admitted to practise by the appropriate Court in India, when briefed in a suit, has implied authority of his client to settle the suit by a compromise; it was however observed at page 1319 of the report that
“Where the legal representative in Court of a client derives his authority from an express written authority such as a vakalatnama, different considerations may well arise and, in such cases, their Lordships express no opinion as to the existence of any implied authority of the kind under discussion.”
There the Advocate's authority was derived from his being retained and being briefed by a solicitor to appear on behalf of the client; that is to say, his authority was a general one endorsing him with power to do all things connected with the proceedings as and when occasion should arise; he was not given any vakalatnama by the client containing the terms of his authority, in which circumstance the Board seemed to have contemplated a different position might exist.
In Jagpati Mudaliar v. Ekambara Mudaliar (2) a vakalatnama empowered a pleader to conduct a suit and the client agreed to accept all acts done by the pleader in Court concerning the suit; it was held by a Division Bench there was no authority to compromise. A decision by another Division Bench to a similar effect is found in Thenel Ammal v. Sokkammal (3) even when the vakalatnama authorised the advocate to present, if necessary, a petition for razinama for withdrawal and to sign razinama withdrawal. But in Jiwibhai v. Ramkuwar , a Full Bench expressed the opinion that barristers, advocates and pleaders in India have inherent powers to compromise claims without the authority or consent of their client, unless their powers have been expressly countermanded in that behalf, irrespective of whether a written authority to act or plead is or is not given. Again, in Viswanathan Chettiar v. Appa Naicken a vakalatnama contained a provision by which the client agreed to accept all proceedings conducted by an Advocate as if done by the client personally; Horwill, J. observed that it was not unreasonable to bear in mind that Advocates ordinarily have authority to compromise and also to assume that it was intended to embody that authority which, in the absence of a vakalatnama would be implied; the learned Judge was, therefore, not prepared to say that a compromise which had been made was illegal.
Any doubt which might exist, regarding the meaning and effect of a vakalatnama containing provisions similar to those in the present case, is removed by a pronouncement of the Judicial Committee in Saratkumari v. Amulyadhan . There, a pardanashin lady executed a power of attorney appointing several persons, including Babu Probodh Kumar Das, her vakils to argue her case, to inspect the records, execute documents and deposit and withdraw monies and do all such other acts, the same to be accepted and ratified as acts done by her; the above-named vakil purported to enter into a compromise on her behalf; he never saw her, never spoke to her in reference to the compromise nor had any communication with her touching it. It was observed by the Board at page 15 of the report that
“it has been well established and is not, as their Lordships understand, questioned in this case, that a vakil appointed under such a power of attorney as is this not endowed with power of authority to compromise the suit he is thus retained to argue.”
Where it is called a power of attorney or a vakalatnanaa the authority of the Advocate in the present instance, is derived from the written document. In principle, there is no difference whether the client is a pardanashin lady or a lady who does not observe gosha or anybody else. The fourth defendant empowered the Advocate to appear for her and to conduct and defend the suit; she did not empower him to settle it on her behalf. He had no express authority to effect a compromise, but solely to contest the suit. In those circumstances no implied authority arises or can be deemed to have been conferred upon him to make a compromise which was binding upon his client.
In light of the pronouncement by the Board in Saratkumari v. Amulyadhan and, with respect, differing from the decisions to the contrary, above cited, in my opinion the learned Subordinate Judge was correct and this civil miscellanous appeal must be dismissed with costs. The suit will be remanded to the trial Court, as directed by the lower appellate Court.
Tyagarajan, J.:—I agree and have nothing to add.
N.R.R