P. Krishnamachariar vs The Official Assignee of Madras

Cornish, J.—The appellant is an advocate of this Court. He put in a claim to the Official Assignee for certain moneys due to him by the

insolvent for work done for the insolvent in probate proceedings in respect of a will of which the insolvent was the executor and a legatee, and also

for other work done by him on behalf of the insolvent. The Official Assignee disallowed a portion of the claim as excessive. There was an appeal

against that order, and Mr. Justice Stone held that the claim of the appellant should be allowed in full with interest against the estate of the insolvent.

The appellant impeaches that order on the ground that he was entitled to payment from the estate of the: testator, Appaswami Pillai, inasmuch as

he was entitled to a lien on that property as having been recovered for the insolvent by his exertions in the probate litigation.

With regard to the first part of this contention, it appears to us that it would not have been competent for the Insolvency Court, to make an

order against the estate of the testator. The only property which was vested in the Official Assignee by reason of the executor''s insolvency was the

property of the insolvent. The insolvency of the executor did not have the effect: of divesting him of Appaswami Pillai''s estate which was vested in

him as executor and of vesting it in the Official Assignee. The Insolvency Court could not, therefore, have made an order, directing the Official

Assignee to satisfy the claim out of the estate of the testator.

With regard to the other point, I do not think that it is sustainable. There is no enactment in this country recognising the particular lien for costs

which is sanctioned by the Solicitors Act, 1860, in favour of a Solicitor upon property recovered by his exertions for a client, though it has been

held that Solicitors who have been admitted attorneys of an Indian High Court have this lien: Tyabji Dayabhai and Co. v. Jetha Devji and Co. ILR

(1927) 51 B. 855 But the appellant is an advocate and not a solicitor or attorney, and the only possible ground for supporting a claim to such a lien

in his favour would be an express agreement by the client to that effect. But no such agreement is forthcoming; on the contrary it appears that the

appellant took a promissory note for Rs. 3,000 as security for his costs in the probate litigation. There is, therefore, no ground for holding that

appellant had a lien. Under these circumstances, the appeal fails and must be dismissed with costs.

Horace Owen Compton Beasley, Kt., C.J.

I agree.