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Mangal Prasad and anr. Vs. Nabi Bakhsh and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All371; 43Ind.Cas.74
AppellantMangal Prasad and anr.
RespondentNabi Bakhsh and anr.
Excerpt:
assignment of debt - consideration--suit by assignee--debtor, whether can object--contract act (ix of 1872), section 23--agreement to finances litigation and share fruits thereof--public policy. - - their lordships expressly said that in that particular case, while it was badly argued that although the english law as to maintenance and champerty is not applicable to india, yet there existed principles in the indian law which were very similar in effect to that law, they were of opinion that that proposition could not be supported. indian officer like the judge of the small cause court, cawnpore, was perhaps quite, if not more, competent, to arrive at the real merits of this case than i may be......15 march 1913. the sum said to be due under these bonds by one nabi baksh and another in favour of musammat sanjhli is some rs. 400 odd. musammat sanjhli is described as a widow and by caste bhurji. according to the deed of sale bearing date, the 2nd of february 1916, musammat sanjhli sold all her rights under the two bonds of 15 march 1913 to mangal prasad described as a baqqal and manbodhan singh described as a thakur, residents of cawnpore. the consideration mentioned in the deed of sale is a ruqqa, dated 28 november 1915, for rs. 359-7-6, payable on demand and a cash payment of rs. 50. this sale-deed was registered on the 5th of february 1916, on which date an agreement was executed by mangal prasad in favour of musammat sanjhli; in this document mangal prasad agrees to sue out the.....
Judgment:

George Knox, J.

1. This is an application for the revision of a decision of the Small Cause Court Judge of Cawnpore. The record contains three documents on which both parties have laid considerable stress in the arguments addressed to me. The first two are bonds, both of them bearing date 15 March 1913. The sum said to be due under these bonds by one Nabi Baksh and another in favour of Musammat Sanjhli is some Rs. 400 odd. Musammat Sanjhli is described as a widow and by caste Bhurji. According to the deed of sale bearing date, the 2nd of February 1916, Musammat Sanjhli sold all her rights under the two bonds of 15 March 1913 to Mangal Prasad described as a Baqqal and Manbodhan Singh described as a Thakur, residents of Cawnpore. The consideration mentioned in the deed of sale is a ruqqa, dated 28 November 1915, for Rs. 359-7-6, payable on demand and a cash payment of Rs. 50. This sale-deed was registered on the 5th of February 1916, on which date an agreement was executed by Mangal Prasad in favour of Musammat Sanjhli; in this document Mangal Prasad agrees to sue out the bonds, bear the expenses of the litigation, and divide any proceeds arising out of a decree between himself and Musammat Sanjhli after deducting the costs of the litigation. This document purports to be attested by two men whose mere names are given without any description of occupation or residence even. The value of this, precious document executed after the sale-deed and in more than one point contradicting its terms may be easily imagined. Mangal Prasad and Manbodhan Singh then appear to have instituted a suit, out of which this revision arises, in the Small Cause Court, Cawnpore, and to have arrayed as defendants Nabi Baksh and Musammat Sanjhli and based the suit upon the bonds of 15th March 1913. The answer given by Nabi Baksh is that he has paid up everything that was due under the bonds with the exception of Rs. 30. Musammat Sanjhli said that full consideration had not been paid to her. The Judge of the Small Cause Court in dealing with these statements found that out of the cash consideration of Rs. 50 the plaintiffs took back Rs. 30. He looked upon the agreement as a mere ostensible transaction. It is not very clear what exact meaning the learned Judge intended to attach to the word 'ostensible.' But on comparing it with the same word which occurs a second time in the judgment; namely, in the passage for Rs. 400 ostensibly, paying the Musammat only Rs. 50. I arrive at the conclusion that he used the English word ostensibly as equivalent to ism farzi. He adds to his judgment: 'It appears to me that the suit is a champertous one', and elsewhere: 'The plaintiff thus has started on a speculation and purchased litigation.' As regards the defense of Nabi Baksh, he simply does not believe it. Finally he dismissed the suit. I am asked to interfere on the ground that the English Law of champerty does not apply to British India and the dismissal of the plaintiff's suit on the alleged ground of champerty was illegal and arbitrary, and that upon the finding that payment of amount of the bond had not been proved the suit should have been decreed. In support of this contention I was referred by the learned Vakil for the applicants to the Privy Council case of Bhaghwat Dayal Singh v. Debi Dayal Sahu 35 C. 420 : 12 C.W.N. 393 : 35 I.A. 48 : 7 C.L.J. 335 : 10 Bom. L.R. 230 : 5 A.L.J. 184 : 18 M.L.J. 100 : 3 M.L.T. 344 : 14 Bur. L.R. 49 (P.C.). That case is not of much assistance. Their Lordships expressly said that in that particular case, while it was badly argued that although the English Law as to maintenance and champerty is not applicable to India, yet there existed principles in the Indian Law which were very similar in effect to that law, they were of opinion that that proposition could not be supported. As regards the question whether the transaction was an unfair and unconscionable bargain for an inadequate price, they held that that was a question between assignor and assignee and they found it unnecessary to deride that question as the suit was one in which the assignor did not seek to repudiate the transaction but asked that effect should be given to it. The circumstances, of that case, therefore, are wholly different from the one before me. In the present case the assignees have placed the assignor in the array of the defendants as an opposing party. In Baldeo Sahai v. Harbans 11 Ind. Cas. 932 : 33 A. 626 : 8 A.L.J. 652 it was held that 'although as a general rule where an assignee sues on his assignment and proves it, an adverse party cannot take the objection that there was no consideration, the rule is not invariable and would not apply where the transferor being a party to the litigation had never admitted the assignment, but on the contrary had pleaded that it was fictitious and without consideration.' I incline to the view that the learned Judge really acted upon the finding that the plaintiff has started on a speculation and purchased litigation. Ram Coomar Coondoo v. Chunder Canto Mookerjee 4 I.A. 22 : 2 C. 233 : 3 Sar. P.C.J. 654 : 3 Suth P.C.J. 361 : 1 Ind. Dec. (N.S.) 442 (P.C.). Their Lordships of the Privy Council held that agreements of this kind ought to be carefully watched, and when found to be extortionate and unconscionable so as to be inequitable against the party, or to be made not with the bona fide object of assisting a claim believed to be just, and of obtaining a reasonable recompense therefore, but for improper objects...so as to be contrary to public policy,--effect ought not to be given to them.' The more one considers. the facts of this case, the more it appears to be a complete mixture of all sorts of sharp practice and fraud. This is a case where diamond would cut diamond, I think that an experienced. Indian Officer like the Judge of the Small Cause Court, Cawnpore, was perhaps quite, if not more, competent, to arrive at the real merits of this case than I may be. I am not prepared to interfere. I dismiss the application but I allow no costs in this revision.


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