Bachni v. Kartar Singh

1. The question for determination in this appeal turns on the extent of authority which a counsel has in law to compromise a case on behalf of his client. The appellant Mst. Bachni brought a suit for possession of the land in dispute in village Kheri Barna in tehsil Patiala, on the ground that she was entitled to succeed to it as sister of the last male-holder Sarwan. The land was owned by Baru and on his death it devolved on his son Sarwan who died issueless. The estate of Sarwan devolved upon his mother Mst. Atri and widow Mst. Parsini. Parsml having remarried her share in the estate also went to Mst. Atri. Mst. Atri gifted the entire land in favour of her daughter Kartaro by means of a registered ??? an the death of Kartaro, the land devolved on her daughter Mohinder Kaur who died issue less somewhere in the end of 1955.

2. The mutation of the land in dispute was then sanctioned by the revenue authorities in favour of the defendants who are collaterals of the seventh degree. Bachan Kaur claimed possession of the property as the sister of Sarwan asserting that under special custom a sister of the last male-holder excluded succession of collaterals. Another ground of her claim was that the line of done having suffered a complete extinction the land reverted back to Mst. Atri and the plaintiff was entitled to succeed as her daughter also in preference to the collaterals. According to the plaintiff, she was further entitled to succeed to Kartaro as her sister, she having become an absolute owner of the property which had become her stridhan.

3. The suit was decreed by the trial Court on 29th of December, 1958. The appeal preferred by the defendants, however, succeeded and the case was remanded under Order 41, Rule 25 of the CPC on 291 of April, 1959 after an additional issue had been framed to find out whether the plaintiff was in fact a sister of Sarwan. The trial Court made a report on 27th of August, 1959, that the plaintiff had proved that she was a sister of Sarwan. At the time of hearing of the appeal or 29th of October, 1959, the case was compromised between the parties the plaintiff was awarded a decree for half share of the land in suit against the defendants appellants. Some complication arose in the plaintiff re-gaining possession of this land, the consolidation proceedings having started in the meantime.

4. The parties were afforded an opportunity to effect a private partition of the land between themselves if possible. No agreement was reached and the plaintiff made an application on 18th of November, 1959, to which date the proceedings had been adjourned, that her counsel had no authority to enter into a compromise and she was not bound by it. The plea was rejected by the learned Additional District Judge, Patiala, who held that the counsel had authority to enter into the compromise. A decree for one-half of the suit land has accordingly been made in favour of Mst. Bachni.

5. In the appeal preferred by Mst. Bachni it is not disputed by her learned counsel Mr. Lachhman Dass Kaushal that her Counsel in the lower Court, Shri Vijay Kumar Tiwari had been obtaining instructions from the husband of Mst. Bachan Kaur with regard to the compromise. The learned counsel, however, contends that it was imperative for the counsel of obtain instructions directly from Bachni and he had no implied authority to compromise the suit on her behalf.

6. It is submitted that the power of attorney infavour of the counsel contains various stipulations but there is no term in it which authorises the counsel to compromise, the suit. It is, however, to be borne in mind that the power of attorney mentions that the counsel will have the authority to file suits, applications and “every other kind of application” (ate hor har kisam di darkhawast). In the power of attorney it is also mentioned towards the end that whatever the counsel would do on her behalf it would be acceptable to her.

7. Mr. Kaushal submits that the powers of the counsel being specified in the Vakalatnama, nothing more by way of authority could be implied. The leading authority on the subject is the Privy Council decision of Sourendranath Mitra v. Tarubala Dasi, ILR 57 Cal 1311 : (AIR 1930 PC. 158) in which it was held that an advocate in India “has the implied authority of his client to settle the suit by a compromise”. Such an implied authority was stated by their Lordships to be “not an appanage of office arising from the status of the advocate, but is implied in the interests of the client, to give’ the fullest beneficial effect of his employment of the advocate. It can always be expressly countermanded by the client; and may not exist where the legal representative derives his authority from an express written authority such as a vakalatnama.” Mr. Kaushal specially invited my attention to the following observation made by Lord Atkin at page 1319:

“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.”

8. It is argued that as there is a vakalatnama in the present case where the authority is fully detailed out no implied power to compromise should be inferred. In my-opinion, the terms of the vakalatnama itself give ample authority to the counsel including the one to compromise the suit. With regard to the legal position the matter came up for consideration before a Full Bench of Nagpur High Court in Jiwibai v. Ramkuwar, ILR (1946) Nag 824 : (AIR 1947 Nag 17) and Mr. Justice Bose (later Justice of the Supreme Court), speaking for the Court with regard to the judgment of the Privy Council in Sourendranath Mitra's case, ILR 57 Cal 1311 : (AIR 1930 PC 158) observed thus at page 840:

“Once this is accepted then, because of what their Lordships say, the authority to compromise is implicit in the appointment unless it is expressly countermanded, and that, whether there is authority expressly conferred by the power or not.”

9. In the view of the Full Bench, the authority to compromise was implicit even in the presence of an express authority of the vakalatnama. The implied authority could be negatived only by an express countermand of the client to this effect. There is no term disabling the counsel to enter into a compromise; indeed, from the tenor of the term? in the vakalatnama it appears that the authority was given oven to compromise the suit.

10. In a Division Bench authority of the Madras High Court (Gentle C.J and Tyagarajan J.) in Ramappayya v. Subbamma, AIR 1949 Mad 98 while discussing the Full Bench case of the Nagpur High Court, it was observed by the Chief Justice 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.”

11. Mr. Justice Mudholkar (now a Justice of the Supreme Court) in a Single Bench Judgment of the Bombay High Court in Surendra Shankar Waikar v. Laxman Shankar Waikar, AIR 1960 Bom 20 repelled the argument of the counsel that there is no scope for implying any power with an advocate who has in his favour a vakalatnama from his client who has engaged him. It was observed by Mr. Justice Mudholkar that their Lordships of the Privy Council in Sourendranath Mitra's case, ILR 57 Cal 1311 : (AIR 1930 PC 158) have stated that other considerations will have to be borne in mind while considering the question as to whether advocates deriving their authority from a vakalatnama have an implied power to enter into a compromise. They have not expressed any opinion to the effect that where a vakalatnama exists there is no scope for implying in favour of the counsel authority with regard to matters which are not specifically mentioned in the vakalatnam. Mr. Justice Mudholkar then mentioned the ratio decidendi of the Full Bench authority of the Nagpur High Court in Jiwibai's case, ILR (1946) Nag 824 : (AIR 1947 Nag 17) that barristers, advocates or pleaders have inherent powers although there may be a vakalatnama in existence.

12. The sum and substance of these authorities is that unless there is an express direction to the contrary by the client an authority to compromise is always there. In my opinion, there is no force in this appeal which fails and is dismissed. I would, however, leave the parties to bear their own costs.

CG/M/D.V.C

13. Appeal dismissed.