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Passarilal Mannoolal Vs. Mst. Chhuttanbai and ors. - Court Judgment

LegalCrystal Citation
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 852 of 1951
Reported inAIR1958MP417
ActsCode of Civil Procedure (CPC) , 1908; Contract Act, 1872 - Sections 17, 19B and 19C; Central Provinces Indian Contract (Amentment) Act, 1938; Specific Relief Act, 1877 - Sections 21
AppellantPassarilal Mannoolal
RespondentMst. Chhuttanbai and ors.
Appellant AdvocateR.S. Dabir and ;V.K. Sanghi, Advs.
Respondent AdvocateP.R. Padhye and ;V.S. Pandit, Advs.
DispositionAppeal dismissed
Cases ReferredR. v. Tithe Commissioners
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - (2) except for two houses, all the property would be.....b.k. chaturvedi, j.1. this is plaintiffs second appeal against a decision of the 2nd additional district judge, jabalpur, holding that the contract in the suit is champertous and cannot be specifically enforced; but at the same time it granted a decree for rs. 4,000/- in favour of the plaintiff. the plaintiff has come in second appeal and desires specific performance of the contract and prays for the restoration of the trial court's decree.2. the facts of the case are: lala ram dube (respondent no.3) is the father, respondent no. 1 smt. chhuttanbai is his daughter and respondent no. 2 moolchand is his son. there were disputes between father and son about the property which according to the former was self-acquired, and according to the latter was ancestral. the wife of moolchand.....

B.K. Chaturvedi, J.

1. This is plaintiffs second appeal against a decision of the 2nd Additional District Judge, Jabalpur, holding that the contract in the suit is champertous and cannot be specifically enforced; but at the same time it granted a decree for Rs. 4,000/- in favour of the plaintiff. The plaintiff has come in second appeal and desires specific performance of the contract and prays for the restoration of the trial Court's decree.

2. The facts of the case are: Lala Ram Dube (respondent No.3) is the father, respondent No. 1 Smt. Chhuttanbai is his daughter and respondent No. 2 Moolchand is his son. There were disputes between father and son about the property which according to the former was self-acquired, and according to the latter was ancestral. The wife of Moolchand (respondent No. 2) also filed a suit against her father-in-law for the return of her ornaments.

The son had no money to file a suit for partition; so he approached the plaintiff for some money. The plaintiff agreed to finance the son mainly for the litigation and an agreement was entered into on 7-7-1948 between the plaintiff and Moolchand (respondent No. 2). The portion of that agreement (Ex- P-5), which is material is as follows :

'Great ill-will has been created between me and my father and he keeps the full income received from the property with him. Due to this it has become very difficult-for me to maintain myself and my children. There is no other means except to file a suit for partition. I have no money for filing a suit, nor can I defend the suit alone. By way or compassion you are ready to invest the money and continue the suit. In lieu thereof I make an agreement with you that I shall try to get the house No. 6 in Ghamapur ward, Jabalpur, allotted to my share : On its coming to my share, I will execute the sale-deed in your favour for Rs. 4,000/- and at the-time of compromise also, I shall comply with this condition. The whole amount which will be spent by you in litigation and the amount of my maintenance during the course of the case will all be added in accounts and debited and you will pay the remaining balance of price found due at the time of registration of the sale-deed of the house in suit......

If, for any reason, beyond my control the house does not fall to my share, I will return all your amount together with interest at 10% per month personally or from my property and besides this I will be responsible to pay you Rs. 500/- for your labour in this way.'

3. The partition suit (Ex. P-12) was filed by Moolchand against his father on 2-8-1948. It continued till 5-12-1949. Meanwhile, the suit of Moolchand's wife for return of ornaments against her father-in-law was decreed by the Court. Soon after it, on 3-12-1949 the partition suit was compromised. The main conditions in the compromise as given in the decree signed on 7-12-1949 (Ex. P-9) were the following :

(1) Both father and son would reside in their, residential house either jointly or separately in the portions not occupied by the tenants.

(2) Except for two houses, all the property would be under the management of the son, who was to recover rent of the houses, pay the taxes and repair and maintain the houses in good condition.

(3) From the rents recovered, the son would! pay a sum of Rs. 75/- per month to the father.

(4) No property would be alienated without the consent of the father.

(5) Two houses would be given by the father to his two daughters : the possession of that in Ghamapur ward (i. e., the house in suit) was delivered to respondent No. 1, Smt. Chhuttanbai, and the possession of a house in Bai Ka Baghicha was delivered to Smt. Annapurnabai. Formal registered documents were to be executed.

(6) The father was to pay Rs 2,500/- to Pas-sarilal (i. e. the plaintiff-appellant in the present case).

4. This compromise came as a set-back and a great disappointment to the plaintiff Passarilai, who had advanced Rs. 2,379/- to respondent No. 2 Moolchand, but who lost the house in question and, therefore, he filed the instant suit. The main contention advanced is that the father and the son had' colluded in the compromise in order to defeat the claim of the plaintiff to the house in Ghamapur. The plaintiff-appellant proved for a decree directing the defendants-respondents to execute a sale-deed in favour of the plaintiff after taking Rs. 1621/-In the alternative, he asked for a decree for Rs. 4,000/.

The trial Court held that there was collusion between the father and the son and passed a decree for specific performance of the contract. The lower appellate Court held that it was a case of champertous agreement which could not be specifically enforced. It also held that there had been neither collusion, nor any kind of fraud, in arriving at the compromise or in giving the house in question to respondent No. 1. It, therefore, gave the plaintiff a decree only for Rs. 4,000/-.

5. Shri R.S. Dabir, learned counsel for the plaintiff-appellant has confined himself mainly to the following two points :

(1) Whether the contract of 7-7-1948 can be said to be a champertous agreement?

(2) Whether the respondent No. 2 colluded with his father in order to defeat the appellant's claim to the house in question? He also urged that the agreement was neither onerous nor unconscionable and that the property was not the self-acquired property of Lala Ram Dube, respondent No. 3, but it was ancestral property and a decree for partition was inevitable.

6. Now, it may be observed, at the outset, that the law regarding 'maintenance and champerty that had been introduced in 1938 in the former territory known as C. P. and Berar is somewhat different from that prevailing in other parts of India. This law must be taken to be in force in the Mahakoshal area of the new State of Madhya Pradesh.

The provisions of Sections 19-B and 19-C added in the Indian Contract Act by the C. P. and Berar Indian Contract (Amendment) Act, 1938 (XV of 1938) will be reproduced and discussed later. But to understand the real significance of the amendment it seems necessary to have a clear grasp of the main and salient features of the English law of maintenance and champerty and to understand the reasons which prevailed in the Courts in India to lay down that the English law could not be made applicable to the conditions in India.

7. In England it was never thought right for one to buy an interest in another's quarrel. Any incitement by one person to another to litigation by offers of assistance in the expectation of being paid was severely condemned. 'Maintenance' in a Court of Justice is defined in Hawkins' 'Pleas of the Crown' as being 'where one officiously intermeddles in a suit depending in any such Court which in no way belongs to him, by assisting either party with money or otherwise, in the prosecution or defence of any such suit' (8th Edn. ; Vol. I; page 454),

It is also pointed out that anybody may lawfully give money to a poor man to enable him to carry on his suit. Other exceptions to the general rule have also been pointed out in different treatises. A common interest, speaking generally, may make justifiable that which would otherwise be maintenance. But the common interest must be one of a character which is such that the law recognises it. Such an interest is held to be possessed when in litigation a master assists his servant, or a servant his master, or help is given to an heir, or a near relative. As regards the general rule, at page 462, Section 38, Hawkins observes ;

'It seemeth that all maintenance is strictly prohibited by the common Law, as having a manifest tendency to oppression, by encouraging and assisting persons to persist in suits, which perhaps they would not venture to go on in upon their own bottoms; and, therefore it is said that all offenders of this kind are not only liable to an action of maintenance at the suit of the party grieved, wherein they shall render such damages as shall be answerable to the injury done to the plaintiff, but also that they may be indicted as offenders against public justice, and adjudged thereupon to such fine and imprisonment as shall be agreeable to the circumstances of the offence.'

The same view is reiterated by Blackstone in his Commentaries (Book IV; C. 10; Section 12) where it is added :

'This is an offence against public justice, as it keeps alive strife and contention and perverts theremedial process of the law into an engine of oppression'

8. Maintenance is of several kinds. It is a common Law offence. Several statutes had been passed in England imposing penalties on particular kinds of maintenance. A list of those statutes can be found at pages 426-427 in the speech of Lord Phillimore in the leading case, Neville v. London 'Express' Newspaper, Ltd. (1919) AC 368 (A) where many extracts from old text-books on Common Law have been reproduced and the entire case law has been reviewed on this point. After observing that 'Champerty' is a form of maintenance and 'occurs where the person maintaining another takes as his, reward a portion of the property in dispute', Lord Finlay L. C., in his speech, quotes from page 208 of Lord Coke's 'Second Institute':

'Every champerty is maintenance, but every maintenance is not champerty, for champerty is but a species of maintenance, which is the genus. It was an offence against the Common Law.'

The Lord Chancellor expressed the opinion in that case that the offence of maintenance was irrespective of the rights or wrongs of the particular suit and a writ might be obtained to restrain the maintainer from going on with the maintenance. In fact, the promotion of suits and defences by one who has nothing to do with them was regarded by the Common Law as against public Policy, as it may lead to grave abuses.

9. It was argued in this case that an interference in a suit, which is not officious, and does not pervert the law into an engine of oppression, but, on the contrary, helps the law to be an instrument of justice, cannot be considered to be an offence and should not be held to be actionable. It was further urged that justification or excuse for maintaining a suit must be found in the righteousness of the suit and the proof of its righteousness is its success.

These arguments were repelled by the majority of the noble Lord who held that maintenance is a tort, is malum in se and it cannot be purged of its illegality by the fact that the suit so presented had been successful. In other words, it was laid down by the House of Lords in that case that the success of the maintained litigation is not a bar to the right of action for maintenance.

10. The law in England on this point still remains the same. As pointed out in Halsbury :

'The Courts will not enforce, or act upon, an agreement which amounts to maintenance and champerty.'

(Simonds Edn. ; Vol. I; Pt. 7; Sec. 83 P. 41). It is pointed out in para 82 that where a person assists a poor stranger his action is justified if he had a bona fide belief in the justice of his cause, but a mercenary bargain takes the case out of the exception. Then it is laid down that an agreement to supply funds or legal assistance for litigation in return for a share in the proceeds is champertous and that unlike other kinds of maintenance, champerty is not excused even by blood-relationship (See 84, P. 42). It will be manifest that the law regarding champertous agreement is very strict in England.

11. Though the rigidity of the original law of maintenance has recently been relaxed, so far as exceptions to the law are concerned, maintenance as such still remains both a tort and a crime. All the judicial cases relating to maintenance have, again, been recently reviewed in Martell v. Consett Iron Co. Ltd. 1955-1 Ch 363 (B) by the Court of Appeal and the conclusion remains the same. At page 429 of this decision, Vaisey J. observed as follows :

'In the 10th edition of Russell on Crime there is a note (on p. 374) explaining the origin of 'maintenance' in the following words: The abuse of legal proceedings by oppressive combinations to carry them into effect is said to have speedily appeared upon the establishment of the laws in the time of Edward I. Instead of their former associations for robbery and violence, men entered into formal combinations to support each other in law suits; and it was found requisite to check this inequity by Act of Parliament'.

If such were the origin of the principle, I wish we could have held that to maintain a patty in litigation is only wrongful where there is something in the nature of a conspiracy between the maintained party and the maintainer to defeat, rather than to further the ends of justice. But in face of the authorities, many of them recent, which have been cited to us, it would seem that maintenance is still in law both a tort and a crime in all cases, except where it can be brought into one of the recognized exceptions to the rule which prohibits it.'

12. Sir William R. Anson in his 'Principles of the English Law of Contract' points out that maintenance is a civil wrong which does not often figure in the law of contract. (Twentieth Edition, p. 221). It may be that the law relating to maintenance has undergone a slight change; but champertous agreements are still void and there has been absolutely no relaxation in this respect.

13. The question whether the principles of the English law relating to maintenance and champerty should be applied to the Indian society was canvassed in the earliest British Courts in India, but their decisions were not uniform. Some Courts held that the principles of the English law must be made applicable, while others held that those principles could not be made applicable to the conditions in India, Different Courts gave different reasons for not applying the principles of the English law.

In some cases it was said that maintenance and champerty are offences by the Common and Statute law of England but are not offences in India, and so the principles of the English law could not be made applicable here. Others said that those principles could not be held to be against public policy in India. Still others assigned the reason that the principles of the English law were not in perfect consistency with the Hindu law relating to contracts, and, therefore, they should not be made applicable. The question came up before the Privy Council in z (C) where the entire case law bearing on this point was referred to. Sir Montague E. Smith, who delivered the Judgment of the Board, observed :

'It appears to their Lordships that the condition of the Presidency towns, inhabited by various races of people, and the legislative provision directing all matters of contract and dealing between party and party to be determined in the case of Mahomcdans and Hindus by their own laws and usages respectively, or where only one of the parties is a Mahomedan or Hindu by the laws and usages of the defendant, furnish reasons for holding that' these special laws are inapplicable to these towns. There seems to have been always, to say the least, great doubt whether they were in force there, a circumstance to be taken into consideration in determining whether they really were part of the law introduced into them.

It would be most undesirable that a difference should exist between the law of thy towns and the Mofussil on this point. Having regard to the frequent dealings between dwellers in the towns andthose in the Mofussil, and between native persons under different laws, it is evident that questions would constantly arise as to which law should govern the case.'

14. It was, therefore, laid down that the English laws of maintenance and champerty were not of force as special laws in India. A fair agreement to supply funds to carry on a suit in consideration of supply a share of the property, if recovered, ought not to be regarded as being, per se, opposed to public policy. But agreements of such a kind ought to be carefully watched and when extortionate, unconscionable, or made for improper objects, ought to be held invalid.

15. Since then, that decision has been the sole guide, and all the Courts have been following the principles enunciated therein : See Kunwar Ram Lal v. Nil Kanth 20 Ind App 112 (PC) (D), Raiah Mokham Singh v. Rajah Rup Singh 20 Ind App 127 (PC) (E), Bhagwat Dayal Singh v. Debi Dayai Sahu 35 Ind App 48 (PC) (F), Ramanamma v. Marina Veeranna AIR 1931 PC 100 (G), Ram Sarup v. Court of Wards AIR 1940 PC 19 (H), Husain Buksh v. Rahmat Husain ILR 11 ATI 128 (I), Venkat Pathiraju Gam v. Venkata Subhadrayyamma AIR 1919 Mad 7180), Banarsi Das v. Sital Singh AIR 1930 Lah 392 (K), Scottish Union & National Insurance Co. v. Roushan Jehan AIR 1945 Oudh 152 (L), Dara Shahpurji v. Askarai Begum AIR 1954 Hyd 98 (M), Urmao Commercial Bank Ltd. v. Kai-lash Nath (S) AIR 1955 All 393 (N), and Navaaee-tha Krishnaswami Devasthanam v. Rukani & Co. 1955-2 Mad LJ 339 (O). That the principles enunciated therein were also held applicable to the Central Provinces and Berar cannot be doubted, Hiralal v. Dagdoo AIR 1920 Nag 69 (P) and Latif v. Pandhari AIR 1923 Nag 214 (Q).

16. The result of all these decisions cited above was that champertous bargains were held to be neither void nor illegal in India. The Courts were asked to probe into them and regard them as enforceable or otherwise on the same principles as govern any other ordinary bargain. Unless any agreement was shown to have been entered into for any improper object or to encourage litigation which, on face of it, was unrighteous, or unless the agreement was in any way, unconscionable or extortionate, it was to be held to be enforceable.

It was further to be borne in mind that the uncertainties of litigation are proverbial; and if the financier must need risk losing his money, he can well be allowed some chance of exceptional advantage. In other words, the Courts were asked, while judging the fairness or otherwise of a champertous agreement, to have regard not merely to the value of the property claimed but to the commercial value of the claim.

17. Though the principles enunciated were quite clear, yet public opinion on this point does not seem to have been satisfied. Champerty, which was rife, was considered to be almost scandalous. The following remarks of Mr. Justice Phear in Grose v. Amirtamayi Dasi 4 Beng LR (OC) 1 at pp. 12-13 (R) condemning 'the speculative traffic in law proceedings' used to be frequently quoted.:

'A large class in the community fattens and grows rich on the spoils of needy suitors. Litigation is promoted and maintained without reference to the wishes or interests of the nominal parties. As often as not, in cases where proprietary interests are in contest, the names on the records represent puppets who move at the bidding of persons who are in no way before the Courts. The proceedings are carried on not to adjust the right of suitors seeking equity and justice, but in order that contingencies may be determined according to whichthe successful player in a great game of speculation will draw the stakes.'

18. In Chunni Kuar v. Rup Singh ILR 11 All 57 at pp. 72-73 (S) Sir John Edge observed that

'the abuses which Phear J. in his judgment in Grose v. Amirtamayi Dasi (R) (supra) stated to exist in every court of civil justice throughout Bengal, unfortunately exist at the present day in these provinces.'

19. The Civil Justice Committee appointed by the Government of India under the chairmanship of Mr. Justice George Claus Rankin (as he then was) in its Report (1924-25) referred to these remarks of the Judges in Chapter 43 (pages 502-517) while dealing with the evils of champerty and added that the 'evils have not diminished since Sir John Edge made this pronouncement'. The facts of many judicial cases from Oudh were narrated in the Report where many rich families had been ruined by litigation on the basis of champertous agreements which secured to the financiers enormous advantages In para 26 (page 516) the Committee made the following observations :

'The main objection which we have to the existing state of the law is that it does not in practice protect the litigant sufficiently against the financier, and that it usually in no way protects the party against whom a speculative case is brought. We do not propose any alteration of the law which will make such agreements as fall within the definition of champertous agreements in the English law void under Section 23 of the Contract Act (Act IX of 1872). We propose no alteration under Section 6 of the Transfer of Property Act (Act IV of 1882), but we do propose that all agreements of a champertous nature should be made voidable under the provisions of Act IX of 1872.

We suggest that whenever an agreement is made by which a financier secures undue advantage to himself by assistance given to the successful party in litigation, it should be open to that party to avoid the agreement by suit on the condition that he refunds the actual consideration with interest to be fixed by the court. Such interest would be awarded at a higher rate than the prevalent rate in view of the risks involved but should not be unreasonable .....In no circumstances would we allow the financier to obtain title to the property in suit if the plaintiff is prepared to pay what the court considers to be a sufficient sum.'

20. I think that from a perusal of this extract of the Report of the Civil Justice Committee, the conditions prevailing in India in 1924-25, the public dissatifaction on the rule of Law laid down by the Courts in India, and the urgency of remedying the evils attending champertous agreements or speculation in litigation will be apparent.

21. Nothing, however, seems to have been done by the Government of India in this matter. The rule of law laid down by the Privy Council in Ram Coomer v. Chunder Canto (C) (cited supra) remained the same in other provinces of British India. After nearly a dozen years it appears that the then C. P. and Berar Government introduced a special Bill 'The Central Provinces and Berar Indian Contract (Amendment Bill, 1937 (Bill No. 45 of 1937) in the Assembly. The Bill is published at page 185 of the C. P. and Berar Gazette, dated, Nagpur, 3-12-1937 (Part II). It is stated in the 'Statement of Objects and Reasons :

'In India the specific rules of English law in respect of champertous agreements have not been adopted and the only provision for holding some of them illegal is Section 25 of the Indian Contract Act, 1872 (IX of 1872). The Civil Justice Committeewere of the opinion that the law should be soamended as to check the evils which arise from champertous litigation. The amendments proposed will implement the recommendation of that Committee.'

22. The Statement of Objects and Reasons is certainly not admissible as an aid to the construction of a statute. But it can be referred to for the limited purpose of ascertaining the conditions, prevailing at tne time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to remedy. State of West Bengal v. Subodh Gopal 1954 SCR 587 at p. 628 : (AIR 1954 SC 92 at pp. 104-105) (T) and M.K. Ranganathan v. Government of Madras 1955-2 SCR 374 at p. 385 : ( (S) AIR 1955 SC 604 at p. 608) (U).

23. The C. P. and Berar Indian Contract (Amendment) Act, 1938 (Act No. XV of 1938) was assented to by the Governor General on 5-7-1938 and was published in the C. P. and Berar Gazette, dated Nagpur, 22-7-1938 (Part III, page 1268); and it is reproduced below :

'Preamble. Whereas it is expedient to provide for the setting aside of champertous agreements and to amend the Indian Contract Act, 1872, for that purpose;

It is hereby enacted as follows :

1. This Act may be cited as the Central Provinces and Berar Indian Contract (Amendment) Act, 1938.

2. After Section 19A of the Indian Contract Act, 1872, the following sections shall be deemed to be inserted, namely :

'19-B. (a) 'Maintainer' means a person who gives assistance or encouragement to one of the parties to a suit or proceeding and who has neither an interest in such suit or proceeding nor any other motive recognized by law as justifying his interference.

(b) 'Champertous agreement' means an agreement whereby the nominal plaintiff agrees with the maintainer to share with or give to him a part of whatever is gained as the result of the suit maintained.

19-C. A champertous agreement may be set aside upon such terms and conditions as the court may deem fit to impose.'

24. The preamble of this Act is significant. The preamble of a statute has been said to be a good means of finding out its meaning and as it were a key to its understanding. Thangal Kunju Mussaliar v. Venkatachalam (S) AIR 1956 SC 246 para 63 (V). It will be clear from the preamble that the aforesaid 1938 Act made champertous agreements voidable. The intention of the Legislature was not to codify the principle enunciated by the Privy Council in 4 Ind App 23 (PC) (C) but to discourage such agreements.

25. With respect I have to observe that I cannot see my way to agree with the view expressed in Pannalal v. Thansingh ILR 1949 Nag 663 : (AIR 1952 Nag 195) (W), that Section 19-C does not make a champertous agreement void or voidable, as if the principle enunciated in 4 Ind App 23 (PC) (C), was still the rule in these parts. If the preamble and the Statement of Objects and Reasons had been before the learned Judge' in that case, I am sure, a different view would have been taken.

26. It has been decided in many cases that when a statute authorises the doing of a thing for the sake of justice or the public good, the word 'may' means 'shall'. 'It has been so often decided' said Mr. Justice Coleridge in R. v. Tithe Commissioners (1849) 14 QB 459 at p. 474 (X), 'as to have become an axiom, that in public statuteswords only directory, permissory or enabling may have a compulsory force where the tiling to be done is for the public benefit or in advancement of public justice.' Now, the Amendment Act, which I am considering, by Section 19-C, confers on the Courts power to set aside champertous agreement.

The words 'may be set aside' are not used to give a discretion but to confer a power, and the exercise of such power depends not upon the discretion of a Court or a Judge, but upon the proof of a particular case out of which such power arises. (Craies on Statute Law; Fifth Edition; page 264-265). Once an agreement comes within the definition of ' 'champertous agreement' as given in Section 19-B (b), then, in my opinion, the Courts will be at liberty to set it aside. The discretion of the Courts will be exercised only in imposing the terms and the conditions while setting aside the agreement and this discretion has to be exercised judicially.

27. It may be noticed here that the definitions of 'maintainer' and 'champertous agreement' have been borrowed from the English law. Instead of following the English law and making a champertous agreement void, the C. P. (Amendment) Act, however, makes it only voidable. At the same time the Act lays down that it will be set aside by a Court. In other words, the Courts are not at liberty either to set aside such agreements altogether or to enforce them. They have to consider on what terms the agreements are to be set aside.

28. It was argued by Shri R. S. Dabir, learned counsel for the plaintiff-appellant, that his client could not be a 'maintainer', as he was actuated by a good motive and wanted to help a poor son in a just cause against his cruel father. The learned counsel, however, concedes that the appellant had no interest in the partition suit; but he urges that his client's charitable motive must be 'recognized by law as justifying his interference.'

I have no doubt that it must have been so if the motive would not have been sullied by any bargain advantageous to himself. As explained above, a mercenary bargain must take the case out of the exception. The appellant's eyes were primarily on the house in suit and not on helping the son in a so-called just cause against the father. The appellant had helped defendant 2 Moolchand in the partition suit not only with money but in several other ways also. In para 6 of his deposition (page 17 of the paper-book) he states :

'I used to attend the hearings of the suit with defendant 2 and used to advise him in the suits. I used to help the defendant 2 in acting on the advice of the pleader and comply with the directions of the pleader, in the matter of obtaining documents etc. I obtained copies of the Municipal Jamabandies in respect of the house property. I went to the Municipal Committee on two occasions for this purpose ...... I used to supplythe necessary funds.'

This statement will show that the main motive in interesting himself in stranger's suit was only to get the house in suit allotted to the son in the partition decree and then get it all too cheaply for himself. The house in suit adjoins the appellant's own houses and is on the main road in Ghamapur. If its sale price had been only Rs. 4,000/-, surely there would not have been any insistence on the part of the appellant to get, nor any insistence on the part of respondent 3 Lalaram (father) not to give it to the appellant.

Under the circumstances, the appellant was, in my opinion, a 'maintainer' as defined under Section 19-B or the Contract Act; and, having agreed to share the part of the property, which might be securedby Moolchand respondent 2, the agreement, dated 7-7-1948, was clearly champertous. I, therefore, agree with the lower appellate Court in this finding. I, therefore hold that such an agreement cannot be specifically enforced.

29. I need not discuss in full the second contention now. I shall only briefly state my views on it. The second point raised is that Moolchand, respondent No. 2, in order to defeat the appellant's claims to the house in suit, colluded with his father, respondent No. 3, in making a gift of the said house to respondent No. 1. Now, there is no evidence on record to that effect. It is true that 'fraud' or 'collusion' is secret in its origin and inception and the means adopted for fraudulent design cannot be proved to the very hilt and so it can only be inferred from the circumstances placed before the Court.

At the same time, it has to be borne in mind that the inference of fraud or collusion is to be drawn only from positive materials on record and it cannot be based merely on speculation and surmises. No evidence, oral or documentary, has been produced in support of the allegation of fraud or collusion. The plaintiff ought to have proved that the son prevailed upon the father to give away the suit house to his sister in order to deprive the plaintiff of the suit house.

There is no testimony or circumstance from which this can be inferred. Even the plaintiff's witness Shri Jainarain Mathur (P.W. 5) deposed that at the time of the talk of compromise he was present and Moolchand was telling his father at that time that he did not want to defraud the plaintiff when he had promised to sell a house. That shows that the son was acting bona fide and did not collude with his father, rather it must be the father who did not put the house in suit in possession of the son.

It is evident that certain relatives or well-wishers of the family had put pressure upon the father and the son for reaching a settlement which resulted in this compromise. Respondent 3 till the last moment in the partition suit maintained that the property involved in the suit was his self-acquired. Owing to the compromise, no decision on this point could be given by the Court. The same stand has been taken by respondent 3 in the present suit. The plaintiff (Passarilal) himself did not allege specifically in the plaint that the whole property was ancestral.

On the other hand, in para 7 of his deposition he conceded that the house in suit had been in the name of respondent 3 for the last 10 or 12 years in the Municipal Registers. As there was no specific allegation made of ancestral property, no issue had been framed on that point and so no adjudication can be made now. I would, therefore, not express a definite opinion on the point. From the terms of the compromise itself it appears that at least the two houses which have been given away by the father to his daughters constituted self-acquired property which he did not like to put in his son's possession. The father, respondent No. 3, also states that 10 years before the suit he had made a sankalpa of gifting away these houses to his daughters.

There is nothing in his cross-examination or anywhere on the record to indicate that this statement can be false. I take it as true and come to the conclusion that it was not within the power of the son (i. e. Moolchand) to persuade or compel his father (respondent 3) to allot the house to him so that he may sell it to Passarilal (plaintiff) for a sum of Rs. 4,000/-. It follows that even on thispoint there is no substance in this appeal and it must fail.

30. The appeal is, therefore, dismissed withcosts.

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