{"id":228713,"date":"1993-12-17T00:00:00","date_gmt":"1993-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/john-dsouza-vs-edward-ani-on-17-december-1993"},"modified":"2015-04-05T19:47:36","modified_gmt":"2015-04-05T14:17:36","slug":"john-dsouza-vs-edward-ani-on-17-december-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/john-dsouza-vs-edward-ani-on-17-december-1993","title":{"rendered":"John D’Souza vs Edward Ani on 17 December, 1993"},"content":{"rendered":"
Supreme Court of India<\/div>\n
John D’Souza vs Edward Ani on 17 December, 1993<\/div>\n
Equivalent citations: 1994 AIR 975, \t\t 1994 SCC (2)\t 64<\/div>\n
Author: S Pandian<\/div>\n
Bench: Pandian, S.R. (J)<\/div>\n
           PETITIONER:\nJOHN D'SOUZA\n\n\tVs.\n\nRESPONDENT:\nEDWARD ANI\n\nDATE OF JUDGMENT17\/12\/1993\n\nBENCH:\nPANDIAN, S.R. (J)\nBENCH:\nPANDIAN, S.R. (J)\nSAWANT, P.B.\n\nCITATION:\n 1994 AIR  975\t\t  1994 SCC  (2)\t 64\n JT 1993  Supl.\t   327\t  1993 SCALE  (4)702\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
The Judgment of the Court was delivered by
\nS.   RATNAVEL PANDIAN, J.- The appellant who is an  Advocate
\nin Bangalore practicing since 1942 was proceeded against for
\nprofessional  misconduct on the basis of a  complaint  dated
\nNovember 7, 1986 lodged by the respondent, Mr Edward Am with
\nthe Karnataka State Bar Council (Bangalore) under Section 35
\nof the Advocates Act alleging that the appellant with whom a
\nwill dated July 1, 1968 executed by his mother-in-\n<\/p>\n
66<\/span><\/p>\n
law, Mrs Mary Raymond was entrusted for safe Custody against
\nreceipt\t dated\tJuly 5, 1968 bearing Seriai No. 576  in\t his
\nregister  of  Wills (marked as Ex.  P-1) refused  to  return
\nthat will In spite of two letters dated January 4, 1982\t and
\nApril 15, 1986 demanding the appellant to hand over the will
\nkept  in  his  custody and that the  appellant\tthereby\t has
\ncommitted professional misconduct.\n<\/p>\n
2.   The  synoptical resumption of the case which has  given
\nrise  to  this appeal may be briefly stated.  One,  Mr\tN.E.
\nRaymond\t and his wife, Mrs Mary Raymond were the clients  of
\nthe appellant.\tMrs Mary Raymond during her lifetime got her
\nwill  drafted by the appellant and entrusted the same  after
\nexecution  with\t the  appellant\t in  respect  of  which\t the
\nappellant  had given a receipt dated July 5, 1968  vide\t Ex.
\nP-1.   The  fact that the will has been deposited  with\t the
\nappellant is supported by an entry in the register of  Wills
\nmaintained  by the appellant.  The execution  had  appointed
\nher husband as the executor.  Her husband, N.E. Raymond died
\nin the year 1974.  Mrs Mary Raymond changed her lawyer,\t the
\nappellant  herein and engaged one Mr George DaCosta  as\t her
\nadvocate.   According to the respondent, who is\t none  other
\nthan the son-in-law of Mrs Mary Raymond and who claims to be
\nthe  legal representative of her estate that when Mr  George
\nDaCosta requested the appellant in 1978 to let him have\t his
\nclient’s will, the appellant denied having it.\t Thereafter,
\nMrs  Mary Raymond was obliged to make another will  prepared
\nby Mr George DaCosta on June 24, 1978.\n<\/p>\n
3.   It\t is  the case of the respondent that  he  wrote\t two
\nletters to tile appellant of which one dated January 4, 1982
\nwas sent on behalf of Mrs Mary Raymond under Certificate  of
\nPosting\t from  Manchester  (U.K.) marked  as  Ex.   P-6\t and
\nanother\t letter\t dated\tApril  15,  1986  by  himself  under
\nRegistered  Post  with\tA\/D marked as Ex.   P-8.   Both\t the
\nletters\t were addressed to the appellant requesting  him  to
\nreturn\tthe will dated July 1, 1968.  But the appellant\t did
\nnot reply to both the letters and kept conspicuous silence.\n<\/p>\n
4.   The  second  will\texecuted in  1978  was\tprobated  on
\nFebruary  21,  1984 after the death of Mrs Mary\t Raymond  on
\nOctober 29, 1983.\n<\/p>\n
5.   On\t being aggrieved at the conduct of the appellant  in
\nnot  replying to his letters and returning the will kept  in
\nhis custody, the respondent filed a complaint dated November
\n7,  1986 before the Karnataka Bar Council.  By a  Resolution
\nNo. 110 of 1987 on July 12, 1987, the State Council rejected
\nthat  complaint holding that there was no prima\t facie\tcase
\nmade  out.  The respondent preferred a revision\t before\t the
\nBar  Council of India which by its order dated November\t 20,
\n1988  set  aside  the order of the  State  Bar\tCouncil\t and
\nallowed the revision holding that there existed prima  facie
\ncase  of  misconduct against the respondent  (advocate)\t and
\nremitted  the  matter to the Disciplinary Committee  of\t the
\nState Council.\n<\/p>\n
6.   Pursuant to the order of the Bar Council of India,\t the
\nparties\t appeared before the Disciplinary Committee  of\t the
\nState Bar Council.  The appellant filed his reply on July 3,
\n1989  to which the respondent filed his rejoinder on  August
\n12,  1989.   The  Disciplinary Committee of  the  State\t Bar
\nCouncil by
\n67<\/span>
\nits order dated June 7, 1990 again held that the  respondent
\nwas  not guilty of professional or other  misconduct  within
\nthe  meaning  of Section 35 of the Advocates  Act,  1961  as
\nalleged by the appellant.\n<\/p>\n
7.   Again  being  dissatisfied with the said order  of\t the
\nDisciplinary  Committee, the appellant preferred  an  appeal
\nbefore\tthe  Disciplinary Committee of the  Bar\t Council  of
\nIndia which by its order dated June 4, 1993, disagreed\twith
\nthe findings of the State Bar Council and allowed the appeal
\nby setting aside the order dated June 7, 1990 and held\tthat
\n“the  complainant (the present appellant), has succeeded  in
\nproving\t  that\t the   respondent   committed\tprofessional
\nmisconduct  and\t is hereby liable under Section\t 35  of\t the
\nAdvocates  Act, 1961”.\tThe Disciplinary  Committee  further
\nsuspended the appellant herein from practice for a period of
\none year.\n<\/p>\n
8.   The  appellant  filed a Stay Petition No.\t24  of\t1993
\nunder  Section\t14(2)  of  the\tAdvocates  Act\tbefore\t the
\nDisciplinary  Committee of the Bar Council of India  praying
\nto  stay  the  operation of its order  dated  June  4,\t1993
\nsuspending him from practice, so as to enable him to  prefer
\nan appeal before this Court.  The Disciplinary Committee  of
\nthe Bar Council of India vide its order dated June 23,\t1993
\nsuspended the impugned order for one month from the date  of
\ncommunication of the order.\n<\/p>\n
9.   The present appeal has been preferred by the  appellant
\nalong  with  an application for stay.  When the\t matter\t was
\nmentioned on July 20, 1993, this Court stayed the  operation
\nof the impugned order.\n<\/p>\n
10.  Mr Ram Jethmalani, the learned senior counsel appearing
\nfor  the  appellant  after taking us  through  the  relevant
\ndocuments assailed the impugned findings contending that the
\nrespondent  has\t not substantiated the allegations  that  Mr
\nDaCosta requested the appellant to let him have the will  Of
\nMrs  Mary  Raymond entrusted to him and that  the  appellant
\ndenied\tof having it.  On the other hand, the  letter  dated
\nMay  1, 1990 written by Mr George DaCosta to  the  Chairman,
\nDisciplinary  Committee of Karnataka BarCouncil stating,  “I
\nshould like to clarify my own position and to emphasize\t and
\nstate very clearly that at no time did I make any request of
\nJohn  D’Souza  for the return of her 1968 will nor  did\t she
\nrequire\t it.  There was, therefore, no question arising\t for
\nMr John D’Souza having denied being in possession of it.  Mr
\nJohn   D’Souza\tmade  no  such\tdenial……   unambiguously
\nfalsifies the allegations of the respondent.\n<\/p>\n
11.  According\tto Mr Jethmalani, the will in  question\t had
\nbeen revoked and returned on January 13, 1982 presumably  to
\nMrs Mary Raymond who was then alive.  That fact is supported
\nby  an\tendorsement  made by the  appellant’s  wife  in\t the
\nregister  of Wills and that even assuming that the will\t had
\nnot  been  returned, the appellant cannot be  said  to\thave
\ncommitted any breach of trust by retaining the revoked\twill
\nwhich  after its revocation had become a  mere\tscrap-paper;
\nthat  the  appellant cannot even by imagination be  said  to
\nhave entertained any dishonest or oblique motive or  Carried
\nany  pecuniary profit by keeping the revoked will which\t had
\nbecome\tres nullius and indisputably was a  worthless  paper
\nhaving no value.\n<\/p>\n
68<\/span><\/p>\n
12.  In passing, Mr Jethmalani stated that his client though
\nadmits\tof  having  received the second\t letter\t (Ex.\tP-8)
\ndisputes  the  demand of will by his  alleged  first  letter
\ndated  January 4, 1982 and adds that the respondent has\t not
\nproved the charges by examining Mr DaCosta.\n<\/p>\n
13.  The  respondent appearing in person took much pains  to
\nsustain\t the findings of the Disciplinary Committee  of\t the
\nBar  Council  of  India\t submitting  inter  alia,  that\t the
\nappellant who kept the will in his custody was in the nature
\nof a Trustee and as such he was entitled to return the\twill
\non demand and that the question of oblique motive or private
\ngain  has no relevance.\t As neither the testatrix, Mrs\tMary
\nRaymond\t nor the respondent, being the legal  representative
\nof the estate of the testatrix, had abandoned the will which
\nwas  their  property, it cannot be said that  the  will\t had
\nbecome\tres nullius.  He asserts that the  appellant  should
\nhave  received the first letter or at least deemed  to\thave
\nreceived  that letter (Ex.  P-6) which had been posted\tfrom
\nManchester (U.K.) under Certificate of Posting (Ex.  P-6A).\n<\/p>\n
14.  According\t to   the   respondent,\t  the\tfacts\t and
\ncircumstances  of  the\tcase  have  amply  proved  that\t the
\nappellant  had\tblatantly violated the relationship  of\t the
\nclient\tand the attorney created under law and betrayed\t the
\ntrust and confidence reposed by the respondent in him.\n<\/p>\n
15.  Both parties in support of their respective pleas cited
\ncertain\t decisions which we do not recapitulate here  as  we
\nhave decided to dispose of the matter purely on the facts of
\nthe  case.   However,  it  may\tbe  mentioned  that  Mr\t Ram
\nJethmalani in his reply has given tip the argument that\t the
\ndocument had become res nullius but reiterated his stand  on
\nthe other grounds.\n<\/p>\n
16.  Though the State Bar Council has found that the conduct
\nof the appellant has not amounted to “misconduct much less a
\nprofessional  misconduct to punish the respondent” and\tthat
\n“he  has  not  proved any ‘mens rea’ ” on the  part  of\t the
\nappellant  in  withholding  the\t will  and  given  too\tmuch
\nemphasis on the point of delay and the strained relationship
\nbetween the parties, observed:\n<\/p>\n
\t      “However\twe  hope  the  respondent  will\t  be
\n\t      hereafter careful in dealing with this type of
\n\t      matters.”\n<\/p><\/blockquote>\n
17.  The Disciplinary Committee of the Bar Council of  India
\nafter  examining  the  matter  in  detail  disapproved\t the
\nfindings of the State Bar Council holding thus:\n<\/p>\n
\t      “The  Disciplinary Committee of the State\t Bar
\n\t      Council gave too much emphasis on the point of
\n\t      delay  in\t filing\t the  complaint.   It\talso
\n\t      referred\tto some strained  relations  between
\n\t      the  parties.   We are not inclined  to  agree
\n\t      with these findings.  A mere delay or strained
\n\t      relations between the parties per-se would not
\n\t      make a complaint false.  These are the  points
\n\t      which   should   put  us\t on   ground   while
\n\t      appreciating the contentions raised on  behalf
\n\t      of  either side.\tBut in a case in which\tmost
\n\t      of  the facts are admitted there is little  to
\n\t      do  except  holding  that\t nonreturn  of\t the
\n\t      property of the complainant does not amount to
\n\t      professional  misconduct\ton the part  of\t the
\n\t      Advocate.\t The respondent
\n\t      69<\/span>
\n\t      tried  to submit that will had  been  returned
\n\t      but no convincing evidence to that effect\t was
\n\t      produced.”\n<\/p><\/blockquote>\n
18.  On the basis of the above findings, the impugned  order
\nwas  passed.  The fact that Mr George DaCosta requested\t the
\nappellant  to  hand over the will cannot be said  to  be  an
\nafterthought  and  invented only at the time of\t filing\t the
\ncomplaint.   Even  in Ex.  P-6, it is  mentioned  that,\t “Mr
\nGeorge DaCosta requested the appellant to hand over the will
\nof  Mrs Mary Raymond prepared in 1968 and held in  his\tsafe
\ncustody and that it was understood that the appellant denied
\nthat  the  will was in his custody”.  In the  second  letter
\ndated  April  15,  1986 marked as Ex.  P-8  which  has\tbeen
\nadmittedly  received by the appellant, the facts  of  demand
\nmade  by  Mr DaCosta to return the will\t and  the  appellant
\nhaving\tdenied of it are made mention of.  In addition,\t the
\nrespondent  has stated that he wrote a letter on January  4,
\n1982  to  which there was no reply.  The  only\tdocument  on
\nwhich  the appellant attempts to substantiate his case\tthat
\nthere  was  no such demand as well as denial by him  is\t the
\nletter dated May 1, 1990 sent by Mr DaCosta to the State Bar
\nCouncil.    This  letter  has  been  sent  only\t after\t the
\nproceedings before the State Bar Council had been  completed
\nbut,  of course, before the order was passed.  However,\t the
\norder of the State Bar Council did not have any reference to
\nthis letter, obviously for the reason that this document was
\nnot  produced before the proceedings were over.\t  Though  Mr
\nJethmalani  has insisted that this letter was filed only  on
\nconsent,  the  very fact that the letter did not  come\tinto
\nexistence earlier to May 1, 1990 and that Mr DaCosta was not
\nexamined, demands not to place much reliance on this letter,
\nespecially  in the teeth of the averments found in Ex.\t P-6
\nand  Ex.  P-8.\tAs pointed out by the Bar Council of  India,
\nthere  was  no convincing evidence that\t the  appellant\t had
\nreturned  the will.  As pleaded by the respondent, the\twill
\nthough\trevoked was the property of Mrs Mary Raymond and  on
\nher death had become his property and that the said document
\nwas not abandoned by either of them.\n<\/p>\n
19.  It\t is  disheartening  to\tnote  that  the\t documentary
\nevidence  and  the circumstances bearing the case  leave  an
\nirresistible inference that the entry dated January 13, 1982
\nin the register of Wills should have been manipulated as  if
\nthe document had been returned.\t No doubt, in a disciplinary
\nproceeding  of\tthis nature, the rule is that  the  charging
\nparty has the burden of proving the charge of misconduct  of
\nthe  respondent.  On an overall evaluation of the facts\t and
\ncircumstances  of the case we hold that the  respondent\t has
\nproved that the appellant had not returned the will.  It has
\nto  be\tremembered, in this   connection, that\this  earlier
\nstand  was  that he did not have the will.  He\tchanged\t the
\nposition  later\t and  came out with the\t case  that  he\t had
\nreturned  it in 1982 and for this purpose he relied upon  an
\nendorsement  made by his wife in his register of  documents.
\nWe  are\t left  with  the  irresistible\tconclusion,  in\t the
\ncircumstances,\tthat  he had not returned  the\twill  though
\ndemands\t were made first by the testatrix, then by  her\t new
\nlawyer\tand  by the respondent\t  who was also\tholding\t the
\npower of attorney from the testatrix when he wrote the first
\nletter and was the executor appointed under the second will.
\nThe
\n70<\/span>
\nconduct\t of the appellant in not returning the will even  on
\ndemand\tis  unworthy  of an advocate belonging\tto  a  noble
\nprofession.   The  appellant has no right  to  withhold\t the
\nwill.  On the other hand, he was bound in duty to return the
\nsaid will when demanded because the instrument was entrusted
\nto  his custody by the testatrix, Mrs Mary Raymond  only  on
\ntrust.\n<\/p>\n
20.  Under  these circumstances, we do not find\t any  reason
\nmuch  less compelling reason to interfere with the  impugned
\norder  of the Disciplinary Committee of the Bar\t Council  of
\nIndia.\t The  Appeal is accordingly dismissed and  the\tstay
\ngranted by this Court shall stand vacated.  No costs.\n<\/p>\n
72<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India John D’Souza vs Edward Ani on 17 December, 1993 Equivalent citations: 1994 AIR 975, 1994 SCC (2) 64 Author: S Pandian Bench: Pandian, S.R. (J) PETITIONER: JOHN D’SOUZA Vs. RESPONDENT: EDWARD ANI DATE OF JUDGMENT17\/12\/1993 BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) SAWANT, P.B. CITATION: 1994 AIR 975 1994 SCC […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-228713","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJohn D'Souza vs Edward Ani on 17 December, 1993 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/john-dsouza-vs-edward-ani-on-17-december-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"John D'Souza vs Edward Ani on 17 December, 1993 - 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