MT. RADHABAI Vs. MANGIA

JUDGEMENT

(1.) MT . Radhabai of Balona in the Katol Tahsil of the Nagpur District had brought a suit for foreclosure in the Court of the Second Additional District Judge, Nagpur. That suit was unsuccessful and was dismissed on 31st March 1933. She died on 2nd July 1933 and on 4th July what purports to be a memorandum of appeal was fild on her behalf by Rao Bahadur Kinkhede and Messrs W.R. Puranik and M.D. Khandekar. On 24th July an application was made by Messrs Puranik and Khandekar on behalf of five people, who were alleged to be the trustees of the property left by Radhabai by virtue of a trust executed by her on 4th January 1932, asking that their names be substituted for that of Radhabai. Before orders on this application were passed, another application was put in on 9th September 1933 by Mr. W.B. Pendhar kar on behalf of one Dhanraj, who claimed to be the nearest reversioner of Suganmal, Radhabai's deceased husband, asking that his name be substituted for that of Radhabai, in the course of which he alleged that he had reason to believe that the trustees who had already applied would not object to the substitution of his name. He claimed to be the third cousin once removed of Suganmal. Rao Bahadur Kinkhede on behalf of the trustees raised no objection to the substitution of Dhanraj's name, and substitution was allowed provisionally pending the hearing of arguments for the respondents.

(2.) WE are clearly of opinion that the substitution cannot be allowed. The case as put by the learned Counsel is as follows. Before her death Radhabai instructed her accredited agent to engage pleaders to file an appeal. She died on 2nd July and the agent in ignorance of her death engaged Counsel on 3rd July and purchased the necessary stamps, and a memorandum of appeal was presented on 4th July and that the trustees were not aware of the fact that the memorandum of appeal had been filed after Radhabai's death until 23rd July. On behalf of Dhanraj it was contended that he was unaware of the incident until 8th September. It is claimed that this Court should act under the provisions of Section 153, Civil P.C., in order to amend the error in the memorandum of appeal. ,

(3.) AN ingenious attempt has been made by the learned Counsel to bring the case within the provisions of the Contract Act and an analogy is sought in the first place to be established with the terms of the Powers-of-Attorney Act No. VII of 1882. Section 3 of that Act, which is the section relied on, runs: Any person making or doing any payment or act in good faith, in pursuance of a power of attorney, shall not be liable in respect of the payment or act by reason that, before the payment or act, the donor of the power had died or become lunatic, of unsound mind, or bankrupt or insolvent, or had revoked the power, if the fact of death, lunacy, unsoundness of mind, bankruptcy, insolvency or revocation was not at the time of the payment or act, known to the person making or doing the same. But this section shall not affect any right against the payee of any person interested in any money so, paid; and that person shall have the like remedy against the payee as he would have had against the payer, if the payment had not been made by him. This section appliest only to payments and acts made or done after this Act comes into force. This Section 3 however does no more than indemnify the holder of a power-of attorney for actions done by him in good faith if the determination of his power by the death of the person granting it was unknown to him at the time. This would operate to indemnify Radhabai's agent, a question with. which we are in |no way concerned. 6. It is next argued that in view of Section. 208 and 209, Contract Act the agent's authority did not terminate until the fact of his principal's death became known to him and that even if it had become known to him, he was bound to take all reasonable steps for the protection and preservation of the interests entrusted to him. Any argument adduced from the law of Contract is inapplicable to the present case, and the short answer is that there is not and can be no contract between a party desiring to prosecute an appeal and. the Court before whom such an appeal is to be preferred. Even if the conditions laid down in the Contract Act were to be considered applicable, the argument would itself be nullified by the condition in Order 3, Rule 4 (2), Civil P.C, that every appointment of a pleader cases to have force when the client dies. If then the provisions of the Civil Procedure Code are to be interpreted in terms of the Contract Act, there exists an express provision excepting the authority of pleaders from the terms of Section. 208 and 209, Civil P.C. 7. Under the provisions of Section 153, Civil P.C, a Court may, subject to the provisions of Section 5, Lim. Act, allow the amendment of an appeal against the person who had died before the date of the presentation of the memorandum, although it is found that no appeal in law exists. We are however unable to hold that such discretion is available to us where it is sought to substitute a person for the potential appellant who died before the memorandum of, appeal was filed, and although we have been shown that the High Courts of. Madras and Allahabad and also this, Court had allowed an amendment in the case of a respondent, we are unable to find any authority for the proposition that the amendment can be allowed in the case of an appellant. The reason for the distinction is clear. Although an appeal against a person already deceased is incompetent, the pleader filing such a memorandum of appeal has full power to file a memorandum, ineffective though it is. In the case before us no power to file a memorandum of appeal existed Under Order. 41, Rule 1, Civil P.C, read with Order 3, Rule 1 ibid, a memorandum has to be filed by the appellant in person or by a specially empowered agent or pleader. Under Order 3, Rule 4(2), the appointment of a pleader only remains in force during the lifetime of a client. This rule is entirely independent of the question of the power of the agent to appoint a pleader on the termination of the agent's power. As soon as a client dies, a pleader has no standing in respect of that client and his power is terminated automatically. Not only therefore would an appeal preferred by a pleader on behalf of such a client be incompetent, but the memorandum of appeal itself would be non-existent. The document presented is not merely one which asks for something which cannot be fulfilled, but is a document which the learned Advocate presenting it had no qualification to present at all. The position is the same as if an attempt Were made to present a memorandum of appeal by a total stranger to the party aggrieved by the decision of the Court below. As there is therefore nothing before the Court on which any order of the Court may fasten, it is impossible for the Court to exercise its power to amend any defect or error in any proceeding before it and Section 153, Civil P. C, will have no applicability. 7. The only remedy open to Dhanraj therefore is to file a memorandum of appeal on his own behalf and if he does so file it, the question of the condonation of delay in making the presentation will have to be considered before the hearing of the appeal can proceed. The question therefore relating to the delay on the part of Dhanraj and the interposition and subsequent withdrawal of a body of alleged trustees, a point which has been urged by the respondents in respect of their contention of the mala fides of the application, will be relegated to such time as a memorandum of appeal is presented on behalf of Dhanraj himself. 8. The result is that the provisional order of substitution is set aside and the memorandum of appeal is rejected with costs. Pleaders fee Rs. 25.