In Re: D., a Mukhtear of Gaya

Courtney-Terrell, C.J.—In this case we have to deal with the conduct of a Mukhtear, D. practising at Gaya. There was a Chamar family whose holdings had been sold under a decree of the Court. After satisfying the decree-holder''s claim there remained a sum of Rs. 2,000 odd which was in the normal course of affairs to be paid over to the judgment-debtors. Throughout the litigation the Chamar''s family acted through its karta, one Bhitan, and had been represented by a pleader who has since retired from the profession. The Mukhtear D. was acquainted with the pleader and in fact resided in the same house with him at all times material to this inquiry and seems to have had ample opportunity for acquainting himself with the circumstances of the family and the circumstances of the litigation which had given rise to the sale. On 18th January 1935, the karta of the family, Bhitan, accompanied by two other members of the family, named respectively Chowthi and Pachan, went to the pleader and offered to him a mukhtearnamah for the purpose of withdrawing the money which was the surplus proceeds that remained in Court. The mukhtearnamah which was given to the mukhtear was signed by Bhitan and it was also signed by Ramautar and Tulshi by the pen of Tulshi and it bore the thumb impressions of Chowthi and Pachan who had accompanied Bhitan, the karta, to the mukhtear: it also bore the thumb impression of the sixth member of the family whose name is Munshi. As a matter of fact it has since transpired that the thumb impression of Munshi and the signatures of Ramautar and Tulshi by the pen of Tulshi were in fact false. The mukhtear accepted this vakalatnamah. The falseness of one of the thumb impressions and the signatures of the three, men who did not accompany Bhitan has since become manifest. The money has in fact not been withdrawn because, by reason of circumstances which are not really necessary to detail the mukhtear was soon made aware of the defect in the mukhtearnamah. The substance of the complaint against the mukhtear is the acceptance of this mukhtearnamah without due inquiry. No damage has in fact been done to anybody because the defect in the mukhtearnamah has since been discovered.

Now the rules of the High Court are very strict and they are the more strict in the case of mukhtearnamahs and vakalatnamahs for the purpose of withdrawing money. As has often been laid down by this Court the responsibility for the genuineness of the authorization of mukhtears or vakils as the case may be are of a wholesome character and for the protection of the public. There conceivably may be a certain temptation present to the mind of a mukhtear, not to be too particular in the case of a mukhtearnamah for the withdrawal of money because if he makes himself unpleasant to his clients by an acute inquiry his clients may possibly dispense with his services and engage somebody else and in any case the mukhtear runs the risk that he may not actually withdraw the money and may lose the standard remuneration for his services. It is by reason of this possibility--this possible temptation--that the rules are made particularly strict. It is perfectly clear that in this case, as has been pointed out by the learned advocate on his behalf, that the mukhtear had no fact before him and no circumstances which would normally have aroused any suspicion. He was acting undoubtedly on the instructions of the karta; he was supported by two members of the family and the earlier litigation had been carried out on behalf of the family through the karta. But the fact that there was nothing to arouse his suspicion does not absolve him from the duty in cases of this kind to make a thorough inquiry and that notwithstanding any possible disadvantage to himself. It is perfectly clear that the mukhtear has done nothing in respect of which this Court should make any reflection upon his character. His conduct has been honest throughout, but he certainly has neglected the precaution which the Court has laid down in the public interest. In the circumstances we see no reason to do more than to warn the mukhtear and the profession generally of the acute importance of making inquiries to see that their mukhtearnamahs are in order even in circumstances where prima facie there are no facts to arouse their suspicion. "We do not see fit to make any further order in the matter.

Mohamad Noor, J.

I agree.

James, J.

I agree.