(1.) This is an offshoot of the suit for Vizianagaram Zemindari, namely Original Suit No. 18 of 1903, on the file of the District Court, Vizigapatam. The present defendants were the plaintiffs in that suit, and it was instituted to recover the Zemindari of Vizianagaram. That suit was dismissed by the Court of first instance in 1908. An appeal was preferred to the High Court wbich was disposed of by a compromise in March 1913. The present suit is by the widow of the Zemindar of Tuni, who financed that litigation on behalf of the plaintiffs (the present defendants), for a sum of nearly two lakhs of rupees. The Subordinate Judge decreed the claim.
(2.) The negotiations which led to the contract need not be gone into in any detail. Up to May 1906 the expenses of the litigation were borne by the present defendants from their own pocket. On the 22nd May 1906 the first agreement Exhibit A was executed by the 2nd defendant and his sons, the 3rd and 4th defendants, to the then Zemindar of Tuni, by which in consideration of the latter agreeing to assist the defendants with money for the expenses of the litigation, they undertook to give him a certain share .in the Zemindari. Exhibit Al was also executed on the same day to sell a share of the estate. On the 14th August 1907 Exhibits B and Bl were executed, which altered the original agreement in some material particulars. We shall have to refer to these agreements at some length later on. After arguments had begun to be addressed by the Pleaders engaged in the Vizianagaram case, the Zemindar of Tuni complained that the funds supplied by him were being misspent by the defendants. This led to angry correspondence between the parties, and ultimately the Zemindar of Tuni refused to advance any further sums. This was about the end of February 1908. The suit was proceeded with with the help of others and judgment was pronounced against the present defendants on the 25th July 1908. It is common ground that the Zemindar of Tuni did not supply any funds for the appeal filed in the High Court, nor was he asked to do so. The amount advanced by the plaintiff s husband before February 1908 amounted to about Rs. 93,000. The Zemindar of Tuni died in 1911.
(3.) The plaint in this suit, as originally framed, alleged that the defendants broke the contract and that the plaintiff was entitled to be paid out of the moneys secured under the compromise the amount of principal and interest due to her for the moneys actually lent, and that she was also entitled to a 3/32nd share in the balance of the compromise amount and in the annuities secured under the compromise. The plaint was subsequently amended by alleging, in the alternative, that it having become impossible for the plaintiff s husband to be a party to the compromise owing to his death, and also because of the fact that Mr. V. Krishnaswami Aiyar on whose assent the compromise was to be effected died on the 22nd December 1911, the contract between the parties became void, and that Sunder Section 65 of the Indian Contract "Act the plaintiff is entitled to a refund of the moneys actually advanced by her husband, although she may not be entitled to specific performance of the contract to give a share in the balance of the compromise amount and in the annuities. These new allegations are contained in paragraph 29 (a), (6) and (c) of the plaint and in prayer (e) of paragraph 38. The 2nd defendant s plea is that the plaintiff s husband broke the contract, and as the agreement was champertous she is not entitled to any relief whatsoever. He also pleads the bar of limitation. Defendants Nos. 1, 5 and 6 contend that they were not parties to the arrangement entered into by the 2nd defendant with the Zemindar of Tuni and that their share in the compromise amount is not liable for the plaintiff s claim. A large number of issues were framed by the Subordinate Judge. With most of them it is not necessary to deal in this appeal. His main conclusions are that the second agreement sperseded the first; that the plaintiff s husband was justified in breaking the contract between him and the 2nd defendant; that the suit is not barred by limitation; that the share of defendants Nos. 1, 5 and 6 is also bound by the contract of the 2nd defendant. On the additional issues framed regarding Section 65 of the Contract Act, his finding is that Section 65 applies to the case and that the plaintiff is entitled to a refund of the amount actually advanced by her husband with interest thereon.