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Marina Viranna Vs. Valluri Ramanamma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad437
AppellantMarina Viranna
RespondentValluri Ramanamma
Cases ReferredLeke Indar Singh v. Rup Singh
Excerpt:
- .....a sum of rs. 4,000 as the 1/4th share of the amount decreed to the defendant as mesne profits. the suit agreement was certainly made bona fide and its object was not improper, but the only ground on which it can be impeached is that it was extortionate and unconscionable. the case reported, raja mohkam v. rup singh [1893] 15 all. 352 is relied on by the respondent as showing that where the remuneration to be received is wholly disproportionate to the money expended the bargain should be deemed to be extortionate and unconscionable. in this case the privy council upheld the judgment of the allahabad high court reported in leke indar singh v. rup singh [1888] 11 all. 118.. plaintiffs had lent money to the defendants who wished to appeal to the privy council and had ho money at all to.....
Judgment:

1. This is a suit brought to enforce an agreement entered into by the plaintiff and the defendant. The defendant's brother took possession of certain properties belonging to the defendant and although there was an attempt to compromise this dispute, that attempt failed and it became necessary for the defendant to file a suit. Plaintiff undertook to assist in the conduct of the suit and also to furnish one-quarter of the costs incurred in the litigation. Defendant agreed that if she was successful the plaintiff should be given one-quarter of the property recovered by her in the litigation. The first question for determination is whether this agreement was executed by the defendant, for she denies having done so. The agreement consists of two documents, Exs. A and A-1, the former executed by the plaintiff to the defendant and the latter by the defendant to the plaintiff. The defendant is a gosha lady, but it is alleged that in coming to this agreement she was assisted by her husband and her father-in-law. The execution of Ex. A-l is spoken to by the plaintiff, P.W. 2, and plaintiff's brother-in-law, P.W. 3. The writer is examined as P.W. 4 and admits that he wrote the document and went away, and that on his return he found it had been signed with the mark of the defendant and attested by the defendant's husband amongst others. He also states that the father-in-law was present while he was writing the agreement and also when he returned. He is described by the Sub-Judge as a reluctant witness. P, W. 5 is an attesting witness and his evidence, although not very valuable, does corroborate the plaintiff's case. He says that Sattayya, the defendant's father-in-law said that the defendant had put her mark. Defendant being a gosha lady, the document is said to have been taken inside to her by her husband and brought out with her mark and a thumb-impression.

2. Against this evidence we only have the evidence of the defendant herself, for her husband had not dared to go into the witness-box. The only suspicious point about the document is the fact that D. W. 1, the Finger-print Expert, says that the thumb-impression is not that of the defendant. It is curious that on the document itself we find round the thumb-impression only the words ' left thumb-impression, ' and no words to show whose thumb-impression it is. Assuming that the Finger-print Expert is correct the fact that the thumb-impression is that of some person other than the defendant does not invalidate the document, for it purports to bear her mark, and if this signature has been forged the defendant's husband should have gone into the witness-box and explained how the signature, thumb-impression came to be there. The learned Subordinate Judge has believed the plaintiff's evidence as to execution and in view of the absence of the defendant's husband from the witness-box, I see no reason whatever to differ from this finding. After finding that the agreement is genuine, the Subordinate Judge has held that the transaction is champertous and cannot be upheld by the Court, but has decreed a sum of Rs. 2,775 as a reasonable compensation to the plaintiff for the breach of the agreement. The plaintiff now appeals and contends that the agreement is not champertous and should be enforced. He also asks in the alternative for the delivery of a certain plot of land which he says was actually delivered to him in pursuance of the agreement. This latter claim is not pressed, for the plaintiff cannot claim this particular plot of land as no deed of transfer in respect of it has been executed. We have, therefore, only to consider whether the agreement can be enforced or whether the plaintiff is only entitled to compensation for the breach of it. It is well settled that the law of champerty in England is not wholly applicable to this country, but that certain agreements which are champertous in nature are enforceable. The principle that governs such agreement is laid down by the Privy Council in Ram Coomar Coondee v. Chundur Canto Mookerjee [1876] 2 Cal. 233 where, after stating that a fair agreement to supply funds to carry on a suit in consideration: of having a share of the property if recovered, ought not to be regarded as-being per se opposed to public policy, they go on to remark:

But 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 therefor, but for improper objects as for the purpose of gambling in litigation, or of injuring or oppressing others by abetting and encouraging unrighteous suits so as to be contrary to public policy, effect ought not to be given to them.

3. This principle is repeated in Raghunath v. Nil Kanth [1893] 20 Cal. 843 and again in Raja Mohkam Singh v. Raja Rup Singh [1893] 15 All. 352. In order to arrive at a decision in this case it is necessary to consider the circumstances in which the agreement was made. Defendant was a young woman with a husband aged about 23 and an aged father-in-law, and it is recited in the agreement itself that her brother against whom the suit was to be filed is a very great man and that her husband is unable to work single handed. The father-in-law appears to have been a man of some status as also the plaintiff, and it was the wish of the defendant and her husband and father-in-law that the plaintiff should lend the weight of his position to assist in this litigation and that he should also defray out of his own pocket, 1/4 of the entire costs in the original and appellate Courts. Plaintiff says that the litigation was to go up to the Privy Council if necessary and there is no reason to doubt this statement. Attempts had been made to compromise the dispute between the defendant and her brother and arrangements had actually been arrived at, but the brother refused to register the necessary document. The time for filing a suit was shortly to expire and therefore speedy action was necessary. Defendant's elder sister who was going to finance the defendant was consulted and she proposed the agreement with the plaintiff which is now sought to be enforced.

4. It is not suggested that the defendant and her husband and father-in-law had not funds for the litigation, for admittedly they are people of some means and the defendant's sister was also willing to provide money. There is no question therefore of any necessity compelling defendant to secure the plaintiff's services, but it seems to have been her desire and the desire of her relations that he should help them and that he should be adequately remunerated for his services. He has married the sister of the defendant's husband and therefore the whole arrangement partakes of the nature of a family agreement. Plaintiff had to go to Cocanada for the suit, and subsequently to Madras for the appeal, but the ease went no further. He states that he spent out of his own pocket Rs. 2,500 for the litigation and the Subordinate Judge has found that he has proved payment of Rs. 1,525 to the vakils. In addition to this there were his own private expenses and the expenditure of a good deal of time in attending Courts, and if the appeal had gone to the Privy Council his expenses would have been very largely in excess of what he has spent, for it is doubtful whether the proceedings there could have been prosecuted at a less cost than Rs. 10,000 out of which the plaintiff would have had to furnish Rs. 2,500, his 1/4th share. Plaintiff was therefore risking a loss of Rs. 5,000 or Rs. 6,000 in addition to spending a good deal of his time in working for the defendant's interests. The property is valued by the plaintiff in his plaint at Rs. 20,000,. but it is not disputed that now the properties are worth nearly a lakh, although it does not appear that the plaintiff was cross-examined on this point.

5. Plaintiff also claims a sum of Rs. 4,000 as the 1/4th share of the amount decreed to the defendant as mesne profits. The suit agreement was certainly made bona fide and its object was not improper, but the only ground on which it can be impeached is that it was extortionate and unconscionable. The case reported, Raja Mohkam v. Rup Singh [1893] 15 All. 352 is relied on by the respondent as showing that where the remuneration to be received is wholly disproportionate to the money expended the bargain should be deemed to be extortionate and unconscionable. In this case the Privy Council upheld the judgment of the Allahabad High Court reported in Leke Indar Singh v. Rup Singh [1888] 11 All. 118.. Plaintiffs had lent money to the defendants who wished to appeal to the Privy Council and had ho money at all to finance that appeal. Plaintiffs were not money-lenders and did not press the contract upon the defendants, but still it was held that the agreement could not. be enforced, but a very large amount of compensation was decreed, the plaintiffs being allowed interest at 20 per cent per annum on the moneys advanced by them, the aggregate compensation amounting to Rs. 19,448, the claim being valued at Rs. 50,000. In upholding the High Court's decree their Lordships did not express any concurrence with the argument of the lower Courts, but after stating:

It is evident from their judgment that they felt constrained to come to this conclusion,

they say:

We confess that in this case our sympathies-are entirely with the plaintiffs and we do not refuse to decree their claim for possession of the share out of any sympathy for the defendant.

Their Lordships arrived at the conclusion,

A decision thus arrived at ought not to be set aside on appeal unless it clearly appears to be wrong, and their' Lordships are unable to say that they think that it is wrong.

This case, therefore, does not lay down any principle contrary to what had been previously laid down, nor does it in terms decide that a bargain in which the reward is largely in excess of the expenses incurred is necessarily an unconscionable' bargain. The present case can, I think, also be justified on the ground that the defendant was not in any need. She had. the advice of her father-in-law, her husband and her elder sister and she was contracting with the plaintiff who washer husband's brother-in-law. Can it be said in these circumstances that it was not open to the plaintiff and defendant to come to this arrangement, or that it should be set aside as being extortionate and unconscionable? Plaintiff undertook considerable liability and trouble and) though his reward is great he is a relation of the defendant who gives the reward. Viewed in this aspect I do not think that the agreement can be regarded as extortionate and unconscionable, and consequently it must be enforced.

6. Plaintiff's claim for Rs. 4,000, 1/4th of the amount decreed to defendant cannot be admitted, for the agreement is merely to assign to him 1/4th share of the property forming the subject matter of the suit. In the counter-agreement it is more specifically stated that the defendant should apportion out to him 1/4th of the said properties according to good and bad qualities of the soil. The agreement clearly relates to immovable property only and the plaintiff is, therefore, entitled to a decree for possession of 1/4th of the plaint properties after effecting a partition. There being no proof of the amount of mesne profits claimed from date of delivery to defendant the claim must be disallowed, but plaintiff is entitled to mesne profits from date of suit which must be ascertained when making the final decree. The appeal must be allowed and a decree given to the plaintiff for partition as above with costs both here and in the lower Court.

7. As a result of the above the memorandum of objections must be dismissed with costs.


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