SOMESHWAR DUTT Vs. TRIBHAWAN 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 1, before its institution, entered into an agreement, whereby plaintiff 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 retrain from doing so. The suit was directed against Pandit Someshwar Dutt, the elder brother of plaintiff 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 9 September 1929, dismissed the suit. On appeal the Chief Court of Oudh, on 13 October 1930, in substance decreed it. The defendant appeals. In the sequel, inasmuch as plaintiff 2 has no concern with the merits of the case, plaintiff 1 will be referred to as "the plaintiff" where that expression is used.

(2.) 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 immovable property left by her. The defendant was born on 22 December, 18.87; the plaintiff was born on 29 April 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 29 April 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 Bennia, at the instance of the defendant, affiriming the mental capacity of the plaintiff. The document was duly registered.

(3.) In May 1911, the plaintiff had joined the family party at Mussoorie. Then followed some trouble with the plaintiff's wife, who had disappeared under circumstances which were not regarded as creditable. In point of fact, to avoid scandal, it was given out that she was dead. In February 1912, the plaintiff's wife took proceedings for the recovery of certain lost jewellery, but these have no direct bearing on the issues in this case, and need not therefore be referred to in detail. Next followed, in June 1912, a partition suit, in which the plaintiff, at the instigation of Badri, sought to obtain his half share in the property held jointly by him and his brother. This suit was defended by Someshwar Dutt on the alleged ground, amongst others, that the plaintiff was insane and an idiot. It was ultimately compromised, and the property was equally divided between the plaintiff and the defendant.