1. This is a Letters Patent appeal from a decision of Mr. Justice Divatia. The facts material for the purpose of this appeal are briefly these:
The appellant was defendant No. 5 in a suit of 1924 which was instituted by one Abdul Aziz to recover possession by partition of his share in the assets of a partnership business which he maintained was a business in which one of the partners was his deceased father through whom he claimed. It was alleged that the partnership had already been dissolved and that its entire assets had come into the hands of defendant No. 1 in the suit, namely, Haji Hajaratkhan. The trial Court dismissed the claim on various grounds, particularly on the ground that the plaintiff's father was not interested in the partnership business. An appeal was taken to this Court by the plaintiff Abdul Aziz against that order. But after the appeal was filed Abdul Aziz applied for withdrawing from the appeal. Before that application was granted one Manjrekar, claiming to be an assignee under an agreement dated September 10, 1931, from the said Abdul Aziz and the respondent defendant No. 5, of a specific share in the subject-matter of the suit, applied for permission to continue the appeal. That permission was granted, and Manjrekar was brought on the record as an appellant in addition to Abdul Aziz. The latter's application for withdrawal was thereafter allowed. After some time Manjrekar himself applied for withdrawal from the appeal. If that withdrawal were permitted there would be no person competent to prosecute it. Consequently defendant No. 5, Ebrahim Sherkhan, Manjrekar's other assignor who is now the appellant, applied for permission to be transposed as appellant. That permission was granted, and upon his application for permission to prosecute the appeal in forma pauperis an inquiry was ordered through the Court below as to his pauperism. The trial Court reported that the appellant was a pauper; and when that report was being considered in this Court, upon objection taken by defendant No. 1 respondent that, in view of the assignment of the appellant's interest in the subject-matter of the appeal, the application for permission to appeal in forma pauperis was not competent under Order XXXIII, Rule 5(e), of the Civil Procedure Code, Mr. Justice Divatia refused leave to appeal as a pauper. The appellant was given two months' time to pay the requisite Court fees. Against that order defendant No. 5 has now filed this Letters Patent appeal.
2. The principal contention of the appellant is that the objection of the opponent respondent No. 1 could not be sustained inasmuch as the prohibition under Order XXXIII, Rule 5(e), of the Civil Procedure Code, applies to a subsisting agreement and the assignment in question could not be regarded as subsisting at the date of the application owing to the conduct of the assignee in the appeal and that at any rate the assignment did not affect the claim in the appeal. That is not a pure question of law and involves ascertainment of facts. It is material to observe that the question was not raised in that form before Divatia J.
3. Prima facie, the provisions of Order XXXIII, Rule 5(e), are designed to apply to a transaction between the appellant and a third party of a champertous character entered into at some stage of the proceedings or even before the proceedings in order that the appellant may be able to prosecute the appeal with the financial or other assistance from the assignee or the party with whom the agreement is made. The clause in question reads thus
The Court shall reject an application for permission to sue as a pauper :
(e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter.
4. The reason of the rule is obvious. The benefit of the exemption granted to the pauper appellant could not be allowed to be reaped by the assignee who is able to pay the Government fees. The argument of the learned advocate on behalf of the appellant is of a two-fold character. It is said, firstly, that in view of the appellant's claim in this appeal, which does not embrace his full aliquot share in the subject-matter of the suit but is restricted to a part of his legal share which remains unaffected by the assignment to Manjrekar, the objection in Clause (e) of Rule 5 cannot apply to him; and that alternatively the interest under the agreement had been renounced by necessary implication at the date of the application by the assignee by withdrawing from the appeal.
5. It seems to me that the subject-matter in a suit or appeal, in which a share is claimed on partition in the assets of a partnership business carried on by the deceased ancestor of an appellant and his other partners, would consist of the entire assets of the partnership in which an aliquot share is claimed for until partition his interest is inchoate and unascertained. A party claiming such interest is unable to predicate with certainty the identical property either immoveable or moveable that would be allotted to him upon the eventual determination of his interest in the common property. The subject-matter of the appeal, in my opinion, is one thing and the value of a party's claim in that subject-matter is entirely another thing, and that claim cannot be regarded as the subject-matter of the suit merely because ha is liable to pay an ad valorem duty assessed on the market value of the claim. I am, therefore, of the opinion that if by agreement the appellant has assigned his interest or part thereof in the entire assets to a third party to finance the litigation at any stage of the proceedings or even before the suit, his act comes within the ambit of the rule, and he cannot claim exemption on the ground that he has reduced his claim to the unassigned share in the property.
6. Upon the alternative ground of argument that the agreement or assignment is no longer subsisting, it appears that Manjrekar was a party to these proceedings, but owing to the failure of the appellant to pay bhatta his name was dropped. It is, therefore, not possible to say what Manjrekar has to say in the matter. As I read Clause (e) of Rule 5, the agreement must not only be an agreement with reference to the subject-matter of the appeal but it must also be an agreement under which any other person ' has obtained' an interest in such subject-matter. In other words, the interest acquired must be subsisting and the agreement operative and not rescinded and the claim thereunder not renounced. In Asa Ram v. Musammat Genda I.L.R. (1934) Luck. 265 the Court was considering the effect of a transferee's statement that he had given up his rights under the transfer deed or assignment, and it held that that agreement did not stand in the way of the plaintiff being allowed to sue as a pauper, inasmuch as the agreement in question was no longer subsisting or effective at the time when the application was made. With respect I agree with that view and also a similar view expressed in Hanifa Bat v. Haji Siddick Bin Meanji Sait I.L.R. (1907) Mad. 547 The latter was a case decided under the provisions of Section 407(d) of the Civil Procedure Code of 1882. It is clear to me that if the agreement is not subsisting or is ineffectual to sustain a claim to the subject-matter of the appeal, the ratio of the prohibition ceases, for in that event it could not be said that the assignee has any interest in the payment of the Court fees even on a part of the subject-matter of the appeal which the appellant could have claimed but for the assignment.
7. I notice that in the affidavit filed it is not stated that Manjrekar has renounced his interest under the assignment by withdrawing from the appeal or that the assignment was rescinded. When explaining the fact that he had withdrawn from the appeal it was expressly suggested by the appellant that Manjrekar had colluded with respondent No. 1 in the said appeal. The effect of that statement of the appellant is that there was bargaining by Manjrekar with the opponent. Perhaps Manjrekar thought it a bad economic proposition to continue the appeal or preferred a settlement with his opponent. In the circumstances stated before us, it is difficult to hold that Manjrekar's conduct is tantamount to a rescission of the agreement or abandonment of his claim. The material terms of the agreement are these:
We will hand over into your possession without demur or without entailing expenses to you a one-third share out of the said property either as a result of the High Court appeal or a mutual compromise.... If you desire you should join as a party in the High Court appeal. We consent to your doing so, and we will give such a consent in the High Court.
Manjrekar himself has not come forward to disclaim any interest in the subject-matter of the assignment. Assuming that his withdrawal would have the effect of dismissal of his claim' in appeal, it could not be said that he would thereby be disentitled under the terms of his assignment from recovering his share in the assets from the appellant in the event of the latter's success. The question whether the claim arising under the assignment has been renounced or that the agreement is not subsisting is one of fact, and upon the affidavit it is difficult to sustain the plea now put forward on the appellant's behalf. Moreover it is to be noticed that that plea was not raised before Mr. Justice Divatia. In two cases this Court has recently held that in an appeal under the Letters Patent the appellant is not entitled to be heard on points which had not been raised before the Judge from whose judgment the appeal has been preferred see Shripad v. Shivram : AIR1934Bom466 and Sattappa v. Mahomedsaheb (1935) 38 Bom. L.R. 221 As has been pointed out by Broomfield J. in the latter case that practice is a salutary one and there is no reason to depart from it. That would serve as an additional ground for rejecting this appeal.
8. We, therefore, maintain the order appealed from and dismiss the appeal with costs. We think that we should extend the time for payment of the Court-fees by two months from this date on the clear understanding that no further extension will be granted to the appellant.