1. The plaint sets forth (and for the purposes of this appeal we must assume that what is therein stated is true) that plaintiffs Nos. 1 and 2 were the patnidars of lot Hatpara; and that they granted a 'khai khalasee ijara' of their patni to the defendant Doorga Proshad from 1870 to 1874, the conditions of the said lease being, that if in consequence of any default to pay the zemindar's rent on the part of the defendant, the taluk was sold by the Collector for its arrears, the defendant should be liable to the plaintiffs and their heirs for damages for the loss incurred by them by the sale of their patni taluk. That such being the condition, the defendant in breach thereof allowed the tenure to fall into arrears, and the patni was put up to auction and sold by the Collector on the 14th May 1874 for the small sum of Rs. 5,900, far below its value.
2. Estimating their profits at Rs. 1,187-7-4-1 per annum, and valuing the property at sixteen years' purchase, the plaintiffs, after deducting the Rs. 5,900 realized by the sale, assess their loss at Rs. 13,099-3, which they claim at the hands of the defendant as damages.
3. The plaint then recites, that plaintiffs Nos. 1 and 2 being unable to incur the expenses of a law-suit, have sold 14 annas share of their claim to plaintiff No. 3, Sree Narain Mitter, for the sum of Rs. 4,000, and that by virtue of that sale, the said Sree Narain Mitter stands in their place as plaintiff to the extent of fourteen-sixteenths of the sum claimed as damages from the defendant for breach of his agreement.
4. The District Judge has disposed of the case upon the issues in bar, those issues being:
5. First.--Is the agreement between plaintiffs Nos. 1 and 2 and plaintiff No. 3 void under Section 23 of the Contract Act
6. Second.--If so void, is this suit maintainable for any portion of the damages sought to be recovered
7. The Judge states that on the face of the plaint it appears that Rs. 4,000 have been given for the chance of recovering Rs. 11,461, and he is of opinion that this is a clear case of gambling in litigation, and that he ought, therefore, to regard the object of this agreement between plaintiffs Nos. 1 and 2 and plaintiff No. 3 as opposed to public policy, and therefore unlawful; he holds the agreement to be void, and refuses on this ground to try the suit, as far as plaintiff No. 3 is concerned.
8. The Judge disposes of the suit of plaintiffs Nos. 1 and 2 by saying that it is not competent to them to abandon 14 annas of their claim, and sue 'for a two-anna share of the unliquidated damages claimed.'
9. Having cited numerous authorities in support of his view, the Judge dismissed the suit with costs.
10. We think that the Judge has taken an erroneous view of this case and that his reasoning is opposed to what has been said in some of the judgments which he cites.
11. Constituted as the Courts of this country are, and untrammelled as they are by any laws regarding maintenance and champerty, what has to be considered in such cases is, to quote the words of the Judicial Committee in the case of Chedambar Chetty v. Renga Krishna, &c.; (L.R., 1 Ind. App., 241),--'whether the transaction is merely the acquisition of an interest in the subject of litigation bond fide entered into, or whether it is an unfair or illegitimate transaction got up for the purpose merely of spoil, or of litigation disturbing the peace of families and carried on from a corrupt and improper motive.'
12. Applying this test to the case before us, we fail to see in the plaint any indication of the suit being tainted with any of the corrupt motives which the Judge attributes to its originators.
13. We fail to see in it anything 'against good policy and justice'; anything 'tending to promote unnecessary litigation'; anything 'that is in a legal sense immoral, and to the constitution of which a bad motive is in the same sense necessary.'
14. As we understand the suit, it is one brought by a necessitous family, whose members have sustained loss by the carelessness or misconduct of one who had taken a lease of their ancestral property, to obtain satisfaction in the shape of damages from the wrong-doer. Not having the means to defray the costs of the suit, they resort to a man who owns property in the neighbourhood, and get him to supply the funds. He takes upon himself the risks of the litigation, and is to receive, if the litigation is successful, a fourteen-sixteenth share of what is recovered.
15. Taking the statement of what the agreement is from the plaint, it does not appear to us to be open to the objection of being extortionate or unconscionable; it appears to be a fair agreement, considering the risks of litigation, to supply funds to carry on a suit in consideration of having a share of the proceeds that may be recovered.
16. Even if the Judge were right in refusing to try the suit as regards plaintiff No. 3, he was certainly not justified in refusing to entertain the suit of plaintiffs Nos. 1 and 2, who had a cause of action to which there was no legal bar.
17. We reverse the decision of the Judge, and send the case back to him to be tried on its merits. Costs to abide the result.