MR. JOHN D'SOUZA versus EDWARD ANI

Citation: [1993] SUPP. 3 S.C.R. 1016 · Decided: 17-12-1993 · Supreme Court of India · Bench: S. RATNAVEL PANDIAN · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
MR. JOHN D'SOUZA 
v. 
EDWARD ANI 
DECEMBER 17, 1993 
[S. RATNAVEL PANDIAN AND P.B. SAWANT, JJ.) 
Advocates Act, 1961~ection 35-Advocate iound guilty of not retum-
ing will be tJrafted by him and kept in his safe custody despite Written requests 
held, guilty of professional misconduct. 
Advocates Act, 1961-Disciplinary proceedlng--Burden of prooj-l'osi· 
tion reiterated that person making the charge of misconduct has the burden 
of proving·it. 
Legal Professiolt-Advocate and Client-Client giving documents for 
D safe cwtody gives them on tnu,....,..dvocate duty bound to retum them on 
demand 
-
~ 
The Respondent made a complaint of profe1111lonal misconduct to the 
Karnataka State Bar Council alleging that the Appellant, an Advocate who 
E had drafted the will of his late mother-In-law and bad kept It In bis safe 
custody after entering It In bis register of wilts and afvlng a receipt bad 
not returned the will In spite of written requests. It was further allepd 
that when the new lawyer for the testatrix requested the Appellant for the 
·will he denied having It, and thereafter the testatrix was obllpd to make 
another will. 
F 
The State Bar Council exonerated the Appellant but on appeal by 
the Respondent, the Bar Council of India held the Appellant guilty of 
profe5slonal misconduct and awarded him the punishment of suspension 
from practlce for one .year. The appellant thereupon preferred the present 
G appeal. 
, 
Dismissing the appeal, this Court 
'-
( _j; 
HELD :1. In a dlsdpllnary proceeding of this nature the 111le Is that 
tC 
the cbafgtng party bas the burden of proVtng the charge of misconduct of 
H the Respondent. [102l·FJ 
1016 
D'SOVZAv. EDWARDANI[PANDIAN,J.) 
1017 
2. On an overall evaluation of the facts and circumstances of the A 
case, the Respondent had proved that the Appellant had not returned the 
will though demands were made first by the testatrix, then by her new 
lawyer and then by the Respondent who held a power of attorney from her 
and was the executor appointed under the second will. [1022-F-H] 
3. The conduct of the Appellant in not returning the will even on 
demand is unworthy of an advocate belonging to a noble profession. The 
Appellant had no right to withhold the will. On the other hand he was bound 
in duty to return the said will when demanded because the instrument was 
entrusted to his custody by the testatrix only on trust. [1022-~, 1023-A] 
B 
c 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3206 
(NM) of 1993. 
From the Judgment and Order dated 4.6.90 of the Disciplinary 
Committee of the Bar Council of India in D.C. Appeal No. 24 of 1990. 
Ram Jethamalani, Ms. Lata Krishnamurthi, Amani Sahu Paul D'-· 
Souza for the Appellant. 
Edward Ani, Respondent-in-person. 
The Judgment of the Court was delivered by 
S. RATNAVEL PANDIAN, J. The appellant who is an Advocate in 
Bangalore practising since 1942 was proceeded against for professional 
misconduct on the basis of a complaint dated 7th November, 1986 lodged 
D 
E 
by the respondent, Mr. Edward Ani with the Karnafaka State Bar Council 
(Bangalore) under Section 35 of the Advocates Act alleging that the F 
appellant with whom a Will dated 1.7.1968 executed by his mother-in-law, 
Mrs. Mary Raymond was entrusted for safe custody against receipt dated 
5th July, 1968 bearing serial no. 576 in his register of Wills (marked as 
Ex.Pl) refused to return that Will in spite of two letters dated 4.1.1982 and 
15.4.1986 demanding the appellant to hand over the Will kept in his custody G 
and that the appellant thereby has committed professional misconduct. 
The synoptical resumption of the case which had given rise to this 
~ 
appeal may be briefly stated : 
One, Mr. N.E. Raymond and his wife, Mrs. Mary Raymond were the H 
1018 
SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R. 
A clients of the appellant. Mrs. mary Raymond during her life time got her 
Will drafted by the appellant and entrusted the same after execution with 
the appellant in respect of which the appellant had given a receipt dated 
5.7.1968 vide Ex. P.1. The fact that the Will has been deposited with the 
appellant is supported by an entry in the register of Wills maintained by 
B the appellant. The executrix had appointed her husband as the executor. 
Her husband, N.E. Raymond died in the year 1974. Mrs. Mary Raymond 
changed her lawyer, the appellant herein and engaged one Mr. George 
DaCosta as her advocate. According to the respondent, who is none other 
<" 

Excerpt shown. Read the full judgment & AI analysis in Lexace.