LALA RAM SARUP Vs. COURT OF WARDS

JUDGEMENT

(1.) . The appellant Lala Ram Sarup and respondent No.4, Lala Alopi Parshad, (herein called the plaintiffs), brought the suit out of which this appeal arises in the Court of the District Judge at Delhi on October 16, 1928. The suit was brought upon an agreement of a champertous nature dated October 2, 1920, and made between the plaintiffs and one Saleem Mahomed Shah. Saleem had since January 26, 1920, been suing in the Court of the District Judge at Delhi to establish his legitimacy as son to Shahzada Mirza, Souriya Jah of the Moghul dynasty, who had died in 1913 possessed of considerable property. Besides Saleem, Souriya had left him surviving two widows and two daughters. The Court of Wards had in 1913 taken over his whole estate as belonging to these female heirs, giving a compassionate allowance to Saleem as a temporary measure. It had been decided by the Chief Commissioner that the Court of Wards should not upon its own responsibility recognise Saleem as entitled to succeed to any portion of the estate, but that he should be invited to obtain the decision of a civil Court, and informed that the Court of Wards would give all possible aid to the civil Courts in order to arrive at an early decision with the least possible cost to the litigants. His application for a loan was not unnaturally refused by the Court of Wards ; who gave him instead some inexpert advice about bringing a friendly suit for a mere declaratory decree on a court fee of ten rupees and about suing in forma pauperis. By June, 1919, he had approached a Muslim lawyer of Delhi by name Abdur Rahman. This gentleman was a Khan Bahadur and has since become a knight and a judge of the High Court of Madras. Having made an arrangement with Saleem to take a fee payable by monthly instalments of Rs. 100, he undertook the case and acted for Saleem throughout. On January 26, 1920, Saleem attempted to proceed in forma pauperis by filing an application under Order XXXIII, Civil Procedure Code, containing the same particulars as a plaint. He impleaded the Court of Wards his father's junior widow and daughter and the husband of a deceased daughter. The senior widow had died in 1919. Two schedules (P. 1 and P. 2) were annexed to the application being lists of the moveable and immoveable property left by Souriya according to such information as Saleem had been able to obtain. P. 2 comprised a considerable number of immoveable properties some of which had been held by Souriya as jagirs and were not heritable. The claim was for possession or administration of the whole moveable and immoveable property left by Souriya on the footing that by a family custom overriding the Mahomedan law Saleem as the only son was the sole heir. He asked for mesne profits, accounts and enquiries and other relief and valued his suit at ten lacs of rupees. The Court of Wards did not, however, fulfil the expectations which it had held out as regards facilitating an early decision in a friendly and inexpensive suit. Mr. Modad Ali, its manager, opposed the grant of leave to sue in forma pauperis on a number of grounds, with the result that the Subordinate Judge on April 7, 1920, framed four issues and adjourned the case till August 3, 1920, for evidence and arguments on the question whether leave should be given. When August came, Saleem, despairing of progress along these lines, had got into touch with respondent No.4, Alopi Parshad, who at that time (and until 1923) carried on business with the appellant, Ram Sarup, as moneylenders and bankers. Saleem succeeded in arranging that they should find the money to pay the Court fee (Rs. 3,000) so that his suit should proceed in the ordinary way and not in forma pauperis, and also that they should meet all the expenses of the litigation. Mr. Abdur Rahman on August 27, 1920, applied to the Court and obtained leave to put in the Court fee by October 4 .The money was paid into the Treasury on October 2 and on October 8, the Court made an order treating the application made under Order XXXIII as a plaint.

(2.) THE agreement for finance (which is now sued upon) is a registered instrument dated October 2 It recites that Saleem had only an allowance of Rs. 100 per month, that he had filed a case in forma pauperis, and that it could not be quickly or satisfactorily conducted in that way. A long list of iinmoveable properties is attached to the agreement : it is said to be in the same terms as the list attached to the application under Order XXXIII. THE agreement provides that the financiers, the present plaintiffs, should bear all the expenses of the case and in return therefor should get a three annas share of the immoveable property recovered, provided that this should be increased to four annas should the case be taken on appeal to the Privy Council. It was to be in Saleem's option either (a) to have the property partitioned and give the plaintiffs their share or (6) to have the property valued and pay the plaintiffs in cash.

(3.) IN consequence of the decision, the Court of Wards on July 16, 1925, was placed in charge of Saleem's share with retrospective effect on the ground. that he was a co-sharer with female wards. Soon afterwards, on September 17, 1925, Saleem died leaving a widow and a daughter (defendants Nos. 2 and 3 in the present suit ). As neither these ladies nor the Court of Wards were willing to recognise the plaintiffs' claim under the agreement of October 2, 1920, the present suit was brought against them on October 16, 1928, asking: for a decree for possession of 21/256ths share in the immoveable properties belonging to Souriya's estate, and for partition thereof, as well as for mesne-profits since May 10, 1925. The plaintiffs, Ram Sarup and Alopi Parshad, gave evidence and called on their behalf Mr. Abdur Rahman. For the defendants, Mr. Modad Ali, manager of the Court of Wards, Saleem's widow and a collateral relation of his called Nazirud-din were the main witnesses. The learned Subordinate Judge (October 30, 1935) held that the plaintiffs' claim being a claim. for specific performance of an agreement was by virtue of Article 113 of the schedule to the INdian Limitation Act of 1908 barred as having been brought in October, 1928, more than three years from the date of the decree of May 10, 1925. But he found in the plaintiffs' favour that Saleem was not of weak intellect, that the agreement of October, 1920, was executed by him of his own free will, and that the agreement was not unlawful nor opposed to public policy. The High Court on appeal (June 10, 1937) reversed the trial Court's decision as to limitation, holding that time did not begin to run1 against the plaintiffs on the date of the decree of May 10, 1925,. but only when the plaintiffs had notice that performance was refused. But the learned judges having referred to the evidence as to Saleem's being given to drink and being of weak intellect held that it was " highly probable that Saleem Mohammad Shah was induced to enter into an unfair bargain whereby he agreed to give up property, worth a lac and fifty thousand rupees for a sum of ten or twelve thousand rupees. " They held that the agreement of October 2, 1920, was highly detrimental to his interests and was inequitable and unenforceable. They assessed the reasonable expenses of Saleem's suit at Rs. 8,440 and gave the plaintiffs a decree for that sum, refusing them any costs on the ground that the Court of Wards had offered Rs. 8,500 before the suit was filed.