Gitarani Debi vs Manira Debi

Banerjee, J.—This application raises an important question of law relating to taxation of an attorney''s bill of costs. There is no authority of our Courts covering the point under consideration; at least none has been shown to me.

The summons dated February 1, 1950, taken on behalf of the Plaintiff asked for various orders, but counsel for the Petitioner at the hearing limited the prayers to three in number : (1) taxation of the bill of costs; (2) delivery of the bill of costs; (3) in any event inspection thereof.

No other prayer was pressed.

The facts, out of which the application arises, are these : One Prasad Kumar Mukherji, on September 13, 1944, conveyed certain properties to himself and his wife, Sm. Manira Debi, on certain trusts. One of the beneficiaries was the Plaintiff and in the events that have happened she has become the sole beneficiary. The Plaintiff is the only child of the trustees.

On December 3, 1946, she filed a suit against the trustees and one Sidhweshwar Bhattacharjya, their manager, for removal of the trustees from the office, accounts, administration of the trust, etc. In the plaint there were allegations of breach of trust.

During the pendency of the suit, Prasad died, on or about March 23, 1947. The suit was then settled. The Plaintiff withdrew it, paying her own costs, leaving the Defendant Sm. Manira to get her costs taxed as between attorney and client including fees actually paid to counsel out of the estate, irrespective of any order as to costs previously made in the suit. The compromise decree, on the terms filed, was passed on September 6, 1948.

The Defendants had employed and retained the Respondent to this application, who is an attorney of this Court, to conduct the suit on their behalf.

After the disposal of the suit, on or about September 27, 1948, the Respondent submitted to Sm. Manira (the surviving trustee) his bill of costs amounting to Rs. 4,735-11-9 for payment.

On some date between January 20 and March 2, 1949, Srimati Manira paid to the attorney his costs. On March 2, 1949, the Respondent sent to his client the bill of costs duly receipted.

It is not in dispute that the amount was paid out of the money belonging to the trust.

On February 7, 1949, the original documents had been returned by the Respondent to Sm. Manira. On or about March 30, 1949, the cause papers were made over to her. The attorney has been paid and does not make any claim against the client or the trust estate.

Sm. Manira died on August 9, 1949.

Counsel on behalf of the Petitioner makes no charge of fraud, misappropriation or over-payment against the Respondent. He contends that, as the payment to the attorney has been made out of the trust fund, which is her property, she is entitled, as a matter of right, to the delivery of the bill of costs and to have it taxed and in any event to have inspection.

It was further contended on her behalf that the Court, in any event, in its inherent jurisdiction can make the order on the solicitor, who is its officer, to give inspection.

On behalf of the Respondent, Mr. Asoke Sen argued that this Court had no jurisdiction to make the orders and in the facts of the case it should make no order.

The question is whether the Court has jurisdiction. That is the most important point in this application and as I have said, there is no authority of our Courts on the point.

Counsel on behalf of the Petitioner referred me to the case of In re Blackmore, In re Billing, In re Spike (1851) 13 Beav. 154, (161) : 51 E.R. 60 (62) in support of his contention. In this case, the solicitor of trustees and executors received payment of his bill of costs out of the estate. It was held that a residuary legatee was entitled to have a copy of the bill delivered on payment of the costs of it. The Court, notwithstanding there was not such pressure or such allegations and proof of overcharges as were usually relied on in such cases, ordered the taxation of a solicitor''s bill after payment.

This judgment was delivered in 1851. Then the Solicitors Act, 1843, was in force in England. At p. 161, the learned Master of the Bolls observed:

She (meaning the Petitioner) was not chargeable with the bill because Mr. Spike (the attorney) was not employed or retained by her; but she was liable to pay and did pay a proportion or part of the bill. The statute has provided for the case. Under the 38th section of the Act a party liable to pay is entitled to make such application for a reference for the taxation and settlement of such bill as the party chargeable therewith might himself make and for the purpose of such reference the Court is by the 40th section empowered to order the attorney to deliver to the party making such application a copy of the bill, upon payment of the costs of such copy.

It is clear, therefore, that the order was made under a statutory power given to the Court by the Act of 1843.

This case has been referred to in a subsequent case, In re West, King and Adams. Ex parte Clough (1892) 2 Q.B. 102, 106.

Section 39 of the Solicitors Act of 1843 provides:

In any case in which a trustee, executor or administrator has become chargeable with a solicitor''s bill of fees, charges and disbursements, the Court may upon the application of a party interested in the property out of which such trustee, executor or administrator may have paid or be entitled to pay such bill...refer the same...to be taxed.

In In re Jones and Everett (1904) 2 Ch. 363 it was held that a creditor who had obtained judgment for the administration of the estate of a deceased testator was "a party interested" within the meaning of Section 39 of the Solicitors Act, 1943 and was, therefore, entitled to an order for delivery and taxation of bills of costs which had been paid by the testator''s executors.

The power of the Court to order taxation rests, in the first place, on the original or inherent jurisdiction of the Court over its officers, and in the second place, on the Solicitors Acts. Where the statutory jurisdiction is inapplicable, as where part only of a bill is involved, the Court may order taxation under its general jurisdiction over its officers. See Halsbury, 2nd Ed., Article 214; p. 182.

This general jurisdiction has been recognised in Storer and Co. v. Johnson and Weatherall (1890) 15 App. Cas. 203 and other cases noted in Halsbury. Lord Halsbury observed in Storer''s case, at p. 206, that, though their Lordships could not make the order under the Solicitors Act.

It was of course open to the Court to pronounce a judgment which should do justice between the parties when once the case was brought before them.

See also In re Thomas. Jaquees v. Thomas (1894) 1 Q.B. 747. But, then, in these cases the relation of solicitor and client existed between the parties. None of them was a case of a third party as the one before me.

In this country there is no statute as the Solicitors Acts in England where numerous such statutes were passed. There are no rules in the Original Side Rules of our Court providing for orders being made as in the Solicitors Acts.

The rights and duties of attorneys are in no way part of the indigenous law or practice in India. Their profession originates from England; it grew up under the English common law; and it is clear that it was the common law which governed their rights and duties in the King''s Courts established by the Supreme Court Charter of 1823, to which Courts our present High Court is the successor.

Tyabji Dayabhai and Co. v. Jetha Devji and Co. (1927) ILR 51 Bom. 855, 865.

"Present High Court," in the judgment meant the High Court before the establishment of the Indian Republic.

This case has been followed in our Court, in Damodar Das v. Morgan and Co. (1933) ILR 60 Cal. 1442, where it has been held that the rights of attorneys in India are the same as the rights of solicitors in England under the common law except in so far as the latter have been modified by statute.

This, then, was the law on the subject before the establishment of the Indian Republic. The High Courts inherited their power from the Supreme Court, which, in its turn, had got the power of the King''s Courts.

By the Constitution Act, Section 225, subject to the provisions of the Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislature by the Constitution, the jurisdiction of and the law administered in, any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of the Constitution.

The law as it existed before January 26, 1950, has, under the Constitution, been maintained and continues.

As yet no Act has been passed by any appropriate legislature to change the law on the subject. Therefore, I take it that this High Court still exercises the jurisdiction and administers the law in the matter under consideration in the same way and to the same extent as before the establishment of the Republic.

The question is whether, there being no statute or rule, this Court can make the orders which the Petitioner asks for, the law being the common law of England except in so far as it has been modified by the Statutes there.

The most important case on this point is In re Jackson. In re Cottrell. Roughton-Leigh v. Roughton-Leigh (1889) 40 Ch. D. 495 which was decided when the Solicitors Act of 1843 was still in operation.

In that case, the administratrix, with the will annexed, of a testatrix, who was also tenant for life under the will, employed a solicitor in relation to the administration of the estate, and as was alleged, paid his bill of costs out of moneys forming part of the capital of the estate. More than twelve months after the payment of the bill, some of the beneficiaries, as Plaintiffs, took out an originating summons against the administratrix, as Defendant. The summons was instituted in the matter of the estate of the testatrix and also in the matter of the solicitor and it was served on him, but he was not named as a Defendant. The summons-asked for a reference of the bill to taxation and that in taxing the costs, the Master might certify what amount was properly chargeable against the capital of the trust estate and what amount was properly payable by the Defendant personally, as tenant for life; and that, if it should appear that the bill was overpaid, the solicitor might be ordered to repay the amount certified to be overpaid to the Defendant.

It was suggested that the bill contained items which were not properly chargeable against the capital of the trust estate and that the solicitor knew that he was being paid out of the capital of the trust estate and had notice of the breach of trust at the time when he received payment.

It was settled in England that no taxation could be ordered under the Solicitors Act, 1843, Section 39, when the bill had been paid more than twelve months before the application for taxation. In re Jackson (supra) a preliminary objection was taken on behalf of the Respondent that, more than twelve months having elapsed since the payment of the bill, it could not be taxed. The very eminent counsel who appeared for the Petitioner replied that the application was not made under that Act, but under the general jurisdiction of the Court. North J. asked what right third parties had to tax a bill at all except under this Act. The answer was that the trust moneys had been improperly paid to the attorney, with notice to him of the breach of trust and in that case he could be made to refund as a party to the breach of trust and the Court could exercise a summary jurisdiction over him as its officer, though, he was not made a Defendant; there was jurisdiction over the Defendant and the solicitor had been served with notice of the summons and was present in Court.

A case was referred to by counsel in his argument, Staniar v. Evans (1886) 34 Ch. D. 470. North J. pointed out that in that case the solicitors had practically waived the objection and observed at p. 499:

The Plaintiffs were not liable to pay the bill to the solicitor; the costs were not incurred on their instructions; the bill was not delivered to them and they were not asked to pay it. There is no privity between them and the solicitor. The suggestion made is, that the solicitor has received part of the trust estate, with notice that it was paid to him in breach of trust and that he can be made liable to the Plaintiffs for what he has so received. But he is not a Defendant to the summons, and after the decision of the Court of Appeal in In re Spencer (1886) 34 Ch. D. 470 he could not successfully have been made a Defendant. The preliminary objection is taken on his behalf that, u/s 41 of the Solicitors Act, the application to tax his bill is made too late. The answer given is, that the application is not made under the Act. But the application is made by third parties and third parties have no right to tax a solicitor''s bill except under the Act. The Plaintiffs may or may not have some right of action against the solicitor, but no such action has been brought by them. The application is simply to tax his bill and in my opinion the Plaintiffs have no right to do this.

On these observations the application was refused as against the solicitor.

It is to be noted that in that case the very eminent counsel who appeared for the Petitioner invoked what is called in Halsbury the original or inherent jurisdiction of the Court and suggested that the trust moneys had been improperly paid to the solicitor, with notice to him of the breach of trust and that the solicitor was liable to refund the money as a party to the breach of trust and the Court could exercise a summary jurisdiction over him as its officer. Yet no order was made. Why? Because the Court had no jurisdiction to make the order. Taking that to be the law, I do not think this Court can make the orders asked for. The matter rests on very sound principles.

The attorney was employed and retained by the trustees. They became personally liable to pay to the attorney. The trust estate was not liable. The attorney could get at the trust estate only through the trustee''s right of reimbursement. In a suitable case the attorney could be subrogated to that right but that depended on the question of account between the trustee and the trust estate.

The Plaintiff may have a right of action against the attorney. I do not say anything about that. But a solicitor or other agent employed by trustees has no lien on the trust funds for the expenses : Lightfoot v. Keane (1836) 1 H&W. 745 : 100 E.R. 634 and Hall v. Laver (1842) 1 Hare 571 : 66 E.R. 1158. In Lightfoot''s case the trustees, having occasion to employ the Defendant an attorney to defend certain causes and suits in carrying into effect the trusts concerned, incurred a debt to him for certain costs and expenses for which they deposited the title deeds with him as a security. Lord Abinger, C.B. said:

Whatever their powers were this is the personal debt of the trustees. Could they mortgage the estate? If they could not, how could they make a deposit of the title deeds which is an equitable mortgage? There is no lien at all.

Counsel for the Petitioner also referred to Cordery on Solicitors, 4th Ed., pp. 388 and 421. I do not think there is anything in it which carries the matter further. The trustee being personally liable to pay to the Respondent paid him and the matter, so far as the attorney and client were concerned, ended.

Assuming, however, that the Court has the inherent power. (I do not for a moment hold that the Court has) that power is to be exercised only for the ends of justice. Here, there is no charge made against the attorney of any fraud, misappropriation or overpayment. From first to last the Petitioner''s counsel insisted upon her alleged right. He said that she had the right to the delivery of the bill, she had the right to have the bill taxed, she had the right to have inspection of the bill because the bill had been paid out of money of which she was the sole owner, a right the existence of which I have negatived. I do not see what ends of justice I can serve by making an order in the circumstances of the case.

I dismiss the application without prejudice to the Plaintiff''s right, if any, to take some other appropriate proceeding. The Respondent is entitled to the costs of the application which I certify for counsel.