Fuzeelun Beebee v. Omdah Beebee

Peaoock, C.J:— (The portion of the Judgment relating to the point mentioned was as follows):— The first issue in bar is whether the suit is bad by reason of Keramut Ali not having been made a co-plaintiff in it?

That involves two questions: first, assuming that a sale took place by Mussamut Omdah Beebee, the defendant No. 1, whether Abdool Wahed was the real purchaser, or whether his father-in-law Keramut Ali, the vakeel of Omdah Beebee, was the real purchaser of the estate from his client?

The suit is valued at Rs. 13,764. Of part of the property for which the suit is brought, a mokurrari was purchased for Rs. 100 in the name of the plaintiff Abdool Wahed. As to the residue of the property, it is said that it was sold to the plaintiff for the sum of Rs. 3,000, of which Rs. 500 were paid, and the residue settled by giving up certain debts. There is no evidence in the cause to induce me to believe that bonds legally due from Omdah Beebee to the extent of Rs. 2,500 either to Abdool Wahed or to Moonshee Keramut Ali were ever delivered up. If Keramut Ali was the real purchaser, I believe that no more was actually paid than the Rs. 100 and Rs. 500 for this property, valued at Rs. 13,764. I have already pointed out on delivering judgment upon the second issue on the merits that the bill of sale speaks of debts generally, and not of bonds, and there is no specification anywhere, either in the bill of sale, or in any memorandum at the foot of it, of what the alleged debts for Rs. 2,500 consisted, or of the dates or amounts of the alleged bonds. It may be, but it is unnecessary to enter into that question now, that Keramut Ali had some claim against some one for costs which had been incurred in the suit between No. 1 and No. 2 defendants; but there is no, evidence to induce me to think that defendant No. 1 ever owed any money whatever to the plaintiff Abdool Wahed. If, therefore, Keramut Ali was the real purchaser, and the name of his son-in-law Abdool Wahed was used as a blind, and that it might not appear that the purchase was a purchase by the vakeel from his client, Keramut Ali ought to have been made a party to the suit as plaintiff, in order that the sale of the mokurrari and the absolute interest in the land might have been impeached.

Speaking of the relationship of client and attorney, Story, J., in his Equity Jurisprudence, s. 310, 8th Edition, says:— “It is obvious that this relation must give rise to great confidence between the parties and to very strong influences over the actions and rights and interests of the client. The situation of an attorney or solicitor puts it in his power to avail himself, not only of the necessities of his client, but of his good nature, liberality, and credulity, to obtain undue advantages, bargains, and gratuities. Hence the law, with a wise providence, not only watches over all the transactions of parties in this predicament, but it often interposes to declare transactions void, which, between other parties, would be held unobjectionable. It does not so much consider the bearing or hardship of its doctrine upon particular cases, as it does the importance of preventing a general public mischief (which may be brought about by means, secret and inaccessible to judicial scrutiny) from the dangerous influences arising from the confidential relation of the parties. By establishing the principle that, while the relation of client and attorney subsists in its full vigor, the latter shall derive no benefit to himself from the contracts or bounty, or other negotiations of the former, it supersedes the necessity of any enquiry into the particular means, extent, and exertion of influence in a given case, a task often difficult and ill-supported by evidence which can be drawn from any satisfactory sources.” The same remarks apply with equal force to the relationship of vakeel and client, and it is very important that this principle should be generally known; and it is equally important that the Courts should in these cases take care that they are not blinded by allowing transactions of this nature between pleaders and their clients to be enforced in the name of a third person put forward as the real purchaser.

Assuming, therefore, that the husband had the authority of the wife to execute the mokurrari pottah and the bill of sale, or assuming that the fact was, as some of the witnesses would wish to make it appear, that she actually touched the pen with which her name was signed by the husband, I have no doubt that Keramut Ali, the vakeel, was the person really interested in those documents, and that his son-in-law Abdool Wahed's name was used as a mere color. The husband swears that the whole transaction took place between him and the vakeel in collusion, and that the wife knew nothing about it. I do not believe the evidence of Keramut Ali in which he states that he has neither taken nor purchased the property in the benam of the plaintiff and Abdool Wahed, and that the plaintiff had full right in the disputed property. He wishes it to appear that his son-in-law had purchased the property but of some money which he had previously given to him; and if his evidence is to be believed, it would appear that the whole purchase-money was paid, for he Bays nothing of debts or bonds being given up as a part-payment of the purchase-money. He says:— “Previous to the purchase of a portion of the said property, I made a gift of some money to plaintiff, as he is my son-in-law, and I have this son-in-law and no son. With that money, the said plaintiff purchased and took in mokurrari the said property.” On cross-examination he says:— “I made the gift of the money subsequent to marriage. I cannot exactly remember in what year I made a gift of Rs. 4,600 previous to 1270 (1863), and gave some money also in that year. My son-in-law, the plaintiff, did not mess jointly with me. Plaintiff is paying the costs of this suit, and I am conducting it on his behalf. I have no interest in the suit.” I do not believe that the plaintiff did pay, or was paying the costs of the suit, or any part of it If the son-in-law to whom this liberality had been extended was really paying his father-in-law in advance the costs of conducting the suit, much clearer and more reliable evidence upon that subject could and ought to have been given. Two mohurirs of the pleader Keramnt Ali both prove that he was the man who advanced the money, and the witness Zamin AH specially proves that the said Moonshee (Keramnt Ali) having purchased certain property with his own money in the name of his son-in law Abdool Wahed, said one day in the presence of respectable witnesses that he had caused the mokurrari and the bill of sale to be purchased in the name of his son-in-law, and had made them over to him. We have, therefore, clear evidence that the purchase was made by Keramnt Ali benami in the name of his son-in-law, and we have Keramnt Ali's own evidence to show that he never made them over to his son-in-law, for he swears that his son-in-law originally purchased it. I have no doubt that, if the defendant No. 1, Omdah Beebee, executed those conveyances, Keramnt Ali, and not the plaintiff, was the real purchaser. I therefore think that the first issue in bar must be decided in the affirmative, that is to say, that the suit cannot be maintained in the name of the plaintiff. That I think is the substance of the issue.