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Bombay High Court
Bai Kanta vs Bhailal Ghelabhai Amin on 12 March, 1929
Equivalent citations: (1929) 31 BOMLR 1046, 122 Ind Cas 56
Author: K Amberson Marten
Bench: A Marten, Kt., Murphy


Amberson Marten, Kt., C.J.

1. A preliminary point of evidence arises on this appeal. It is raised in grounds 4 and 5 of the cross-objections of the petitioner Bhailal, respondent No. 1 to this appeal, and It is to the effect that “the lower Court erred in ruling that Messrs. Mavlankar and Baldevprasad were precluded from deposing to the contents of the will.” As to that the learned Judge in para. 22 of his judgment says: “There are four witnesses who have read the will after the death of the testator, and who have been examined as to the contents thereof. Of these two Messrs. Mavlankar, Exhibit 50, and Baldevprasad, Exhibit 106, are pleaders. The will came in their hands in the course of their professional employment in connection with the succession certificate and they were held precluded from deposing to the contents.”

2. So far as the notes of evidence are concerned, we cannot see that there was any argument on this point, or any formal objection taken. None of the counsel appearing before us were counsel in the Court below, but it is alleged by counsel for the petitioner on instructions that his opponent No. 1, the present appellant, objected in the Court below to the pleaders being asked as to the contents of the will, and that the Judge ruled that no such question should be asked. ‘ On the other hand counsel for the present appellant says he has no instructions as to whether his client did or did not object in the Court below.

3. It will, however, be seen from p. 25 that the Judge disallowed the question as to whether this will was; taken back by Suraj. Now these two pleaders acted for Bai Suraj, the widow of the testator Dahyabhai, for the purpose of getting a succession certificate. The first proceedings were conducted by Mr. Mavlan-kar in the Ahmedabad Court, and eventually the Judge held that the Ahmedabad Court had no jurisdiction, and that the parties must go to Nadiad. Consequently it was Mr. Baldevprasad, who presented the petition in the Nadiad Court asking for a certificate. There the opposition being eventually withdrawn, a succession certificate was granted.

4. Now in both those petitions, viz., the one in the Ahmedabad Court and the one in the Nadiad Court, the petitioner Bai Suraj stated as follows
As the widow of the deceased Dahyabhai, and under and by virtue of the will dated October 20, 1918, made by the deceased I am entitled to succession certificate as an heir to the property of the deceased. I will produce the will when necessary.

5. Subsequently in the Nadiad Court there was an application by Jethabhai, dated October 80, 1922 Exhibit 121, in which acting for the minor Chandulal, who is opponent No. 2, he asked that the will should be produced. It appears, however, from Exhibit 122 of November 24, 1922, that later on the parties agreed that the will need not be produced, and that the succession certificate should go, as asked, provided the widow Suraj gave security. Accordingly an order to that effect was made on November 24, 1922, by the learned Judge.

6. I may now turn to the relevant section of the Indian Evidence Act, viz., b. 126, which says :

No…vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such…vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment….

7. There are certain exceptions there which do not apply, and the Explanation states :

The obligation stated in this section continues after the employment has ceased.

8. It is clear that the will in question was one with which the pleader became acquainted “in the course and for the purpose of his professional employment,” viz,, as a pleader for Bai Suraj. Therefore prima facie the case falls within that section. It iSection 4I however, contended that inasmuch as the petitioner Bai Suraj offered to produce the document when necessary, and inasmuch as under the provisions of the Code the petitioner could be forced to produce the document, it having been referred to in the pleadings), on penalty of its being inadmissible at the trial without the leave of the Court, that therefore the document was no longer confidential, and that consequently the section did not apply.

9. But it seems to me that there is a broad distinction between “offering to produce” and “producing.” Supposing, for instance, that the lady had altered her instructions to her pleader and had said :- “Do not produce that document whatever the consequences may be,” I do not think myself that the pleader would have been entitled to state what the contents of that document were. He might have withdrawn from the case. That is something totally different, But in my view he could not have been called by any of the other parties and required to state in the witness-box what the contents of the document were. In the view I take, if any such exceptions are to be established, they must be inserted clearly in the section itself. The general principle is a salutary one, and it ought not to be whittled away by what seem to me to be rather fanciful or ambiguous distinctions.

10. It has been laid down in this Court in Emperor v. Rodri-gues (1903) 5 Bom. L.R. 122 that having regard to Section 129, the present Section 126 does cot apply, if the statement is made to the solicitor not confidentially but for the purposes of communication. Now that particular case was widely different from the present. There the client instructed his solicitor to write a particular letter, and the solicitor did so. The letter was defamatory. The client was sued upon it, and he then set up the claim of privilege. The Court very naturally said that the letter being sent by his instructions for communication, it could not be said to be privileged. Therefore the observations there made by Mr. Justice Chaudavarkar must be read in connection with the facts of the case. He says, for instance (p. 123) :

Here the statements complained of as defamatory were obviously made not under the condition of secrecy and as a matter of fact they were communicated to the complainant by the solicitor because the solicitor had instructions to make them to the complainant. There was, therefore, nothing of the character of confidential communications in them to bring them within the rule in Section 126 of the Evidence Act.

11. Here the will was never sent in a covering letter to anybody. At the most it can De said that the client was willing to produce the will when necessary. In my opinion, therefore, Section 126 of the Indian Evidence Act applied here.

12. The next point is whether the express consent of the client was obtained under Section 126. There is nothing whatever in the evidence before us to show that any such express consent was ever obtained at or prior to the trial, or even that the point was even considered in the Court below. In fact Bai Suraj, the client, is dead. She has left three wills executed at comparatively short intervals before her death. In will No. 2 she complains apparently that will No. 1 was executed by improper means. Will No. 3 is in favour of one of the persons who is alleged to have influenced her in making will No. 1. But even if one takes will No. 3 hs the final and sole will appointing an executor, there are various persons interested as beneficiaries under that will, who are on the opposite side of the record in the present case. The petitioner Bhailal gets certain property, and other property goes to other beneficiaries. But no authority has been cited to up as to whether in a case like that an executor of a deceased person is the proper individual to waive privilege. It may be that where the instructions of his beneficiaries are conflicting, he would decline to do so without the sanction of the Court in the administration of his own estate. But however that may be, the fact here is that no such application was ever made to the Court, and no such consent was ever given in the Court below.

13. As regards the contention that as Hathibhai had deposed to the contents of the will,, that therefore he must be presumed to have given his consent to the pleaders stating the contents of it, that to my mind is not a compliance with the section. If he had said: “I as executor of Bai Suraj agree to the pleaders stating the contents of the will, and I expressly waive all privilege on behalf of Bai Suraj,” then conditions would have been different. In that event it might have been open to the petitioner to have recalled those pleaders, after the consent of the executor had been obtained. If however any such attempt had been made, we should no doubt have had arguments as to whether under all these circumstances Hathibhai was the proper person to give that consent. It is not even suggested in the memo, of appeal, and I have no doubt that the present contention is an entire afterthought raised for the first time practically in answer to a question from the bench.

14. Under these circumstances it teems to me that the learned Judge’s view expressed in his judgment that these pleaders were precluded from deposing to the contents of the will, is correct. I may here refer to the recent Full Bench case of In re An Attorney , f. b. as showing that it is the duty of an attorney to claim privilege, and that if he does not do so and improperly discloses documents without his client’s consent he may be guilty of breach of his duty which, in the case I am citing, resulted in his being suspended from practice. It is, therefore, a serious matter for the pleader and it would be therefore vital to him in the present case to see that the consent, if any, given, was given by the right parties.

15. Under these circumstances it is not a question of this Court merely sending down the case for the further evidence of this pleader. In the view we take of Section 126, the question will still remain whether the express consent of the client to disclose the contents of this document was obtained.

16. Grounds 4 and 5 of the cross-objections will be dismissed.

Murphy, J.

17. Mr. Thakor has argued that the facts of the present case take it outside the condition of Section 126 of the Indian Evidence Act, on three grounds. The first is that, since Bai Suraj had offered to produce the will when required, she was by such offer bound to produce it, and that the privilege is not waived as to documents which have been offered in this way, but is only confined to documents which have not been referred to in the pleadings. The second argument is that since in this case there was a joint interest in favour of two persons, either of those two persons might have given authority to disclose the will. And his last argument was, that the privilege only extends to the case of private and confidential documents, because Section 129 of the same Act refers to confidential communications.

18. I do not think that any of these arguments affects the point in issue. Section 126 specifically enacts that no pleader shall disclose the contents of a document confided to him in his professional capacity, without the express sanction of his client. That section, I think, covers the present case, and the two pleaders concerned could not have been required to give evidence on these points without such consent. There is a further difficulty here, in that Bai Suraj the client is dead, and has left three documents which she seems to have executed as purporting to be wills, In the latest of these she appoints the witness Hathibhai as her executor, but none of these documents has been proved.

19. I think that in the circumstances of the case the evidence as to the contents of the will to be given by the two pleaders cerned was properly excluded.

20. After the above judgment was delivered, the parties having arrived at a compromise, the High Court passed a consent decree in terms of the compromise.

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