Judgement

Appeal (No. 26 of 1939) from a decree of the High Court (March 18, 1937) reversing a decree of the Subordinate Judge, 1st Class, Delhi (October 30, 1935).

The question which arose in this appeal was whether an agreement entered into on October 2, 1920, between one Saleem Mahomed Shah, who died on September 17, 1925, and the appellant, Lala Ram Sarup, and the fourth respondent, Lala Alopi Parshad. whereby the two latter, who were business partners, in consideration of having a specified share in the property recovered, if any, agreed to finance litigation by Saleem Mahomed Shah in which he sought to establish that he was the legitimate son of Shahzada Mirza Souriya Jah, of the Moghul dynasty, and entitled to possession of his late fathers property, was binding on the first three respondents, who were the Court of Wards, and Saleem Mahomed Shahs widow and daughter, all of whom had refused to recognize the claim under the agreement. Saleem Mahomed Shah, in his action, had succeeded, by a decision dated May 10, 1925, in establishing his legitimacy, and had been awarded possession of seven-sixteenths, amounting to Rs.88, 753, of the estate of his late father.

The appellant and the fourth respondent brought their action on the agreement of October 2, 1920, on October 16, 1928.

The facts and the terms of the agreement sued upon appear from the judgment of the Judicial Committee.

The Subordinate Judge held that the plaintiffs claim, being one for specific performance of an agreement, was by virtue of art. 113 of the First Schedule to the Indian Limitation Act, 1908, barred as having been brought more than three years from the date of the decree in Saleem Mahomed Shahs action, namely, May 10, 1925.

On appeal the High Court (Coldstream and Abdul Rashid JJ.) reversed the Subordinate Judges finding on the question of limitation. They held that the second part of art. 113 of the Limitation Act applied, and that time ran not from May 10, 1925, when the decree in favour of Saleem Mahomed Shah was passed, but from the date when performance was refused, which was less than three years before the institution of the present suit. The suit was not, therefore, time-barred. They further held that the agreement of October 2, 1920, was highly detrimental to Saleem Mahomed Shahs interests, and was inequitable and unenforceable. They assessed the reasonable expenses of Saleems suit at Rs.8440, and gave the plaintiffs a decree for that sum.

1939. Oct. 19, 20, 23. Eddy K.C., and A. P. Pennell for the appellant. The appellant is suing on what is undoubtedly a champertous agreement, but it is well settled that the English law of champerty is not in force in India. In Ram Coomar Coondoo v. Chunder Canto Mookerjee (( 1876) L. R. 4 I. A. 23. 47) it was stated that "Cases may be easily supposed in which it would be in "furtherance of right and justice, and necessary to resist "oppression, that a suitor who had a just title to property, "and no means except the property itself, should be assisted "in this manner.” It is submitted that those words apply to the present case. The appellants case in the Courts below was that the financiers—the appellant and his partner, the fourth respondent—had in truth spent sums amounting to Rs. 19,500 on litigation to establish Saleems legitimacy. The agreement of October 2, 1920, provided in substance that the financiers should bear all the expenses of the case, and in return should get three-sixteenths of the immovable property recovered if there was no appeal to the Privy Council, and four-sixteenths if there was. There was in fact no appeal at all. The suit succeeded, a decree was passed, and the value of Saleems share was Rs.88,753. The appellant contends that the agreement now sued upon was a good one, and that the financiers are entitled to their share. On January 5, 1926, Saleem having died on September 17, 1925, the appellant and his partner presented a petition to the Deputy Commissioner asking for a three-s