1. This second appeal arises out of a suit brought by the plaintiff-appellant against the defendant-respondent for recovery of a half-share in certain property. The plaintiff and the defendant entered into an agreement, whereby, in consideration of the plaintiff standing all the expense of litigation, the defendant would bring a certain suit for obtaining the property in question, and, if ultimately successful, would give the plaintiff a half-share in that property.
2. The Munsif dismissed the suit on a finding that the plaintiff was in a position to dominate the will of the defendant and that the transaction was on the face of it unfair. He, accordingly, held that the contract was a voidable one as induced by undue influence. The District Judge, on first appeal, upheld this decision.
3. The first question is whether there was evidence to justify the finding that the plaintiff was in a position to dominate the will of the defendant. The Munsif based his finding on the fact that the defendant was only just over minority, was inexperienced, had no money himself to carry on the litigation and bad appealed in vain to at least one other person who had refused to help him. The District Judge supported this finding merely on the facts that the respondent was young and inexperienced, and did not, as a matter of fact, obtain independent advice. We are not disposed to hold that there was nothing in fact on which the finding could be based, though if we were trying the case originally we should not be disposed to agree with the finding. As to the finding that the transaction was an unfair one, the District Judge has based his finding on the fact that the defendant had so good a chance of obtaining the property that there was little risk in financing him and that the agreement to give half the property, that is a half-worth Rs. 600, for an expenditure which in fact only amounted to Rs. 200 was unfair. Here again we are not disposed to hold that there was no basis whatever for the finding.
4. It has, however, been urged by the appellant that the Courts below should at least have awarded him something under the second clause of Section 19-A of the Contract Act. That clause provides that when an agreement is liable to be set aside on the ground of undue influence, the Court may annex such terms and conditions as may seem just to any order for the contract being set aside. Our attention has been drawn to the last paragraph of the judgment of the District Judge. In this it appears that the District Judge suggested that the appellant should get the sum of Rs. 400 in consideration of the amount spent by him and the risk taken by him. The appellants rejected this suggestion and so the District Judge appears to have considered that there was no course open to him but to uphold the dismissal of the suit. We are inclined to think that the District Judge must have overlooked the second clause of Section 19-A of the Contract Act which enabled him, without the consent of the parties, to impose the suggestion which he made to the parties. Although the grounds of appeal in this case do not raise any question as to the propriety of the District Judge in not invoking this provision of law, we consider that we are entitled to allow the point to be raised.
5. Accordingly we allow this appeal in part and decree that the defendants shall pay to the plaintiff within three months the sum of Rs. 400. In the event of such payment, the plaintiff's suit shall stand dismissed. In default of such payment, the plaintiff's suit shall be decreed with costs. We make no other order as to costs.