PANDIT SOMESHWAR DUTT Vs. PANDIT TIRBHAWAN DUTT

JUDGEMENT

(1.) The suit in the Court of the Subordinate Judge of Gonda out of which this appeal arises was brought by two plaintiffs (1) Pandit Tirbhawan Dutt, and (2) Thakur Jai Indar Bahadur Singh, with whom plaintiff No. 1, before its institution, entered into an agreement, whereby plaintiff No. 2 undertook to pay the costs of the suit, on the footing that he should receive half of the property recovered in the proceedings. The Chief Court of Oudh, from which this appeal comes, have held that that agreement was not in the circumstances champertous. It is unnecessary that their Lordships should express any opinion on this point, and they refrain from doing so. The suit was directed against Pandit Sotneshwar Dutt, the elder brother of plaintiff No. 1. Its object was to recover possession of certain properties which the plaintiffs allege are being wrongly retained by the defendant. The learned Subordinate Judge, by decree dated September 9, 1929, dismissed the suit. On appeal, the Chief Court of Oudh, on October 13, 1930, in substance decreed it. The defendant appeals.

(2.) In the sequel, inasmuch as plaintiff No. 2 has no concern with the merits of the case, plaintiff No. 1 will be referred to as "the plaintiff" where that expression is used.

(3.) In 1894 the mother of the plaintiff and the defendant died, survived by her husband, and by the two sons referred to. They became jointly interested on her death in certain immoveable property left by her. The defendant was born on December 22, 1887; the plaintiff was born on April 29, 1890. After their mother's death, their father managed the property of the infant children till his death in 1899. In that year the District Judge appointed the uncle of the plaintiff and defendant guardian of their persons and property. The plaintiff and defendant both married at an early age-the plaintiff's wife being one Ram Dulari, with a brother by name Badri, whose questionable activities are very prominent in the subsequent history of the plaintiff. In December, 1908, the defendant attained majority, and in 1909 his uncle was discharged from his office as guardian of the person and property of the defendant, and also from his office as guardian of the property of the plaintiff. In March, 1911, the family, other than the plaintiff, went to Mussoorie. On April 29, 1911, the plaintiff attained majority, and on the same date his uncle applied for and obtained a discharge from the office of guardian of his person. In July, 1911, the defendant and the plaintiff executed a general power- of-attorney in favour of their ex-guardian, authorising him to manage the property on behalf of both. Thinking, apparently, that the registrar might raise some question about the mental capacity of the plaintiff because of his appearance or otherwise, a certificate was obtained from Colonel Rennie, at the instance of the defendant, affirming the mental capacity of the plaintiff. The document was duly registered.