SMT TEPI BALA ASH Vs. SMTASIMA SUNDARI ASH

JUDGEMENT

(1.) This is an application on the part of Messrs P. C. Ghose & Co., the recorded, attorneys of the plaintiffs for equitable interference of the Court to enforce their lien for unpaid costs. It is well settled that the rules of English Common Law relating to solicitors lien are applicable to solicitors in India. At Common Law a solicitor has two rights which are termed liens; the first is a right to, retain property already in his possession until he is paid the costs due to him as solicitor and the second is a right to ask the Court to direct that personal property recovered under a judgment obtained by his exertions stand as security for his costs of such recovery. In India no distinction is made between real and personal property and therefore in India the last mentioned lien which is called "particular lien" is operative against personal as well as real property recovered under a judgment. This particular lien may be actively enforced over a fund or the proceeds of a judgment recovered for the client in the course of litigation or arbitration by the solicitor's exertions. By virtue of this lien, the solicitor has a right to ask for the intervention of the Court for his protection whenever he finds, after recovering and preserving the property of his client and after obtaining judgment for the client, that there is a probability of the client depriving him of his costs. But the solicitor's lien on the property recovered by judgment is not an absolute bar against the ordinary right of the client to compromise his dispute with his opponent and therefore the solicitor's lien may be affected by a compromise and the Court will not, for the purpose of preserving the solicitor's lien, interfere with a bona fide compromise. Nor is there any rule that the parties may not compromise an action without the intervention of their solicitor. They must, however, do so honestly and not intend to cheat the solicitors of their proper charges. If the compromise is a collusive one entered into between the plaintiff and the defendant specifically for the purpose of depriving the solicitor of his lien, the Court interferes for the solicitor's protection and orders payment of the solicitor's costs. In a proper case the Court has jurisdiction to enforce the solicitor's lien, even by making a direct order for payment to the solicitor by the opposite party and it is now the settled practice of this Court.

(2.) A perusal of the reported decisions will show that the question of preserving the solicitor's lien has mostly arisen in connexion with compromise by the client after judgment has been recovered and the solicitor's lien has attached to the property recovered. In such cases the Courts have had to ascertain whether the compromise was a bona fide compromise or a collusive one entered into specifically for, the purpose of depriving the solicitor of his lien. The assistance of Court has not been limited only to the protection of the solicitor's lien on the property recovered by judgment but has also been extended in protecting their costs against collusive compromise before judgment as in the cases in Price V/s. Couch (1891) 60 L. J. Q.B. 767 and In re Margetson & Jones (1897) 2 Ch. 314. In both those cases the Court found on the evidence that the compromise was a collusive one. It will appear from the reported decisions that the Courts have interfered to protect the solicitor's lien whenever they have been satisfied, on the evidence before them, of the presence of "collusion" between the compromising parties. Broadly and generally speaking they have inferred "collusion" when the evidence has established: (a) that the negotiations were behind the back of the complaining solicitor, (b) that the opposite party or his solicitor knew that the complaining solicitor's costs were unpaid, (c) that the opposite party actually paid money or equivalent thereof to the complaining solicitor's client direct, (d) that the complaining solicitor's client was impecunious and there was no chance for the solicitor to recover the costs from his own client.

(3.) Such being the law, as I apprehend it to be after hearing the very able and lucid arguments of Mr. H. Banerjee appearing in support of the application and reading the authorities cited by him and other authorities; the question is whether I have before me such evidence as would enable me to hold that the compromise complained of was in fact collusive in the sense that the motive of the parties was to deprive the applicants of their costs and that the parties knew that they were doing an unfair thing. This leads me to the consideration of the facts. The suit in which this application has been made concerns the estate of one Surendra Kumar Ash deceased. Surendra Kumar Ash was a much married man. He started his matrimonial ventures by marrying Tepibala plaintiff 1 in this suit. Thereafter, he took 3 more wives successively. Two of them are dead and the last one is Ashima Sundari defendant 1 in this suit. Surendra Kumar Ash was also a man of business. He used to carry on two hardware businesses at NO. 202/5 Harrison Road and No. 113 Monohar <JGN>Das</JGN> Street. In his business he had two employees named Sital Chandra Mallick and Prafulla Kumar Ash, one of the plaintiffs in this suit. Surendra died on or about 17 June 1941 leaving him surviving Tepibala his first wife and Ashima his fourth wife and, if the genealogical table set out in para. 2 of the petition be correct, 3 agnatic relations Ananda, Prafulla and Nripati who would be the presumptive reversioners to the estate of Surendra expectant on the death of the 2 widows. Of these 3 alleged reversioners Prafulla was one of the employees in the business of Surendra. Sital Chandra Mallick, the other employee, also continued to be employed in the business by Asima as her constituted attorney.