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1948 Supreme(Nagpur) 157
HIGH COURT OF NAGPUR
J Sen
PANNALAL GENDALAL AND ANOTHER – Appellant
Versus
THANSING APPAJI AND ANOTHER – Respondent
Second Appeal No. 679 of 1944
Decided on : 20-12-1948
D T Mangalmurti M Adhikari, Advocates
The Court's decision was influenced by the provisions of the Contract Act, 1872, particularly S. 19-C and S. 19-B, as well as S. 22 of the Specific Relief Act, 1877, which guided the Court's discretion in refusing to decree specific performance.
Headnote:
specific performance - suit for specific performance - Contract Act, 1872 - S. 19-C, Contract Act, 1872 - S. 19-B, Contract Act, 1872 - S. 22, Specific Relief Act, 1877
Fact of the Case:
The plaintiffs filed a suit for specific performance of an agreement. The lower appellate Court found the agreement to be champertous, unconscionable, and extortionate, and refused to enforce it. The plaintiffs were also found to have been sufficiently compensated for their expenses.
Finding of the Court:
The lower appellate Court found the agreement to be champertous, unconscionable, and extortionate, and refused to enforce it. The plaintiffs were also found to have been sufficiently compensated for their expenses.
Issues: The main issue was whether the plaintiffs were entitled to specific performance of the agreement. The Court also considered the nature of the agreement and the compensation received by the plaintiffs.
Ratio Decidendi: The Court held that the agreement was champertous, unconscionable, and extortionate, and therefore refused to enforce it. The plaintiffs were found to have been sufficiently compensated for their expenses, and specific performance was rightly refused.
Final Decision: The appeal was dismissed, and the plaintiffs' suit for specific performance was refused.
J Sen, J—This is a plff's. appeal & arises out of a suit for specific performance. The claim of the plff. for specific performance was decreed by the trial Court, but on appeal it was reversed & the suit of the plff. was dismissed. Hence this second appeal by the plffs.
2. The question for decision in this appeal is whether the plffs are entitled to specific performance of the agreementEx. P-2., dated 29-10-1942. On this question the Courts below have reached different conclusions. The trial Court held that the plffs. were so entitled, but the lower appellate Court took a contrary view. The point for decision in this appeal is which view is correct.
3. In order to decide the question involved in this appeal, it is necessary to set out briefly the following facts. Mangal & Appaji were brothers Dulichand & Hiralal are the sons of Mangal Appaji died in 1933, leaving behind him two widows, Mt. Sarja & Mt. Sattu. Thansinghresp 1. is the son of Appaji, born of Sarja, Chindu is Appaji's son by his second wife Sattu. On the death of Appaji, his brother Mangal, his wife Sattu & son Chindu took possession of the estate & did not allow Sarja & Thansingh their legitimate share in the property of Appaji. According to the plffs. their share was half, while according to the defts. it was 1/3rd. But that question is not material for the purpose of the disposal of this appeal. Sarja & Thansingh, respondent, had no funds to file a suit for the recovery of the estate left by Appaji. They entered into an agreementEx. P-1. with the appellants Pannalal & Dhannalal on 17-3-1940. The appellants agreed to finance the litigation & the respondents in consideration thereof agreed that from the property recovered as a result of the litigation, the appellants were to deduct the expenses incurred by them in the litigation & the balance of the property was to be distributed half & half.
4. The respondents filed an applicationMiscellaneous Judicial Case No. 12 of 1940. for permission to sue in 'forma pauperis' for partition of the estate left by Appaji. Certified copies of the proceedings of the Misc. judicial case have not been filed in the case. The lower appellate Court referred to the register of Miscellaneous judicial cases & stated the facts which were not disputed before him in appeal. The procedure was irregular, but as it has not been objected to & as it has not resulted any prejudice to the appellants the statement of facts made by the lower appellate Court on the basis of the register-entry of the Misc. judicial case may be accepted as true. The application for permission to sue in 'forma pauperis' was made on 30-3-1940; Mangal, his sons Dulichand & Hiralal, Sattu, widow of Appaji, & their son Chindu, were made non-applicants in the case; there were two hearings, on 12-6-1940 & 27-7-1940, & on 5-10-1940 the application was dismissed in default. It appears that there was a compromise between the respondents & the non-applicants in the Misc. judicial case, & the respondents obtained tenancy lands in Chhindbari & Chichband, two houses, cattle, grain, & standing crops, & Rs. 500/. These details are not stated in the pleadings but appear from the evidence of Pannalal, plff. 1, & Thansingh, deft. 1. It is admitted by the parties that the applts. were paid Rs. 500/- & were given a she-buffalo. According to the respondents, this was in full discharge of their liability under the agreementEx. P-1. dated 17-3-1940; while according to the appellants, this was merely in payment of the costs they had incurred but was not in fulfilment of the agreement to convey half the estate to them on recovery of the property as a result of the litigation. The plffs. pleaded that there was another agreementEx. P-2., on 29-10-1942, under which the respondents agreed to convey their land at mouza Chhindbari to them in discharge of the obligations of the respondents arising out of the agreement dated 17-3-1940.
5. The agreement was not registered. As the respondents did not
