Dara Shahpurji and Another vs Askarai Begum and Others

This is a first appeal against the judgment and decree of the learned Judge of the original side dismissing the suit of the Plaintiffs;

During the pendency of the appeal some Respondents died. From a perusal of the orders dated 28-10-1358 F. and 23-11-1358 F. it is evident that the names of Respondents 7, 8, 9, 13 and 14 were struck off from the Memorandum of Appeal because they had died and no steps were taken to bring their legal representatives on the record The result was that this appeal abated against the above said Respondents. The question that falls to be decided is whether the appeal will now abate in its entirety or only so far as the deceased Respondents are concerned. In our opinion, the appeal can proceed to a final adjudication in the absence of the legal representatives of the above deceased Respondents, as the interest of the deceased Respondents can be separated from those of the others, in view of the several responsibility of the executants of Ex. No. 1.

In--Rama Kishen v. Ranga Kistiah AIR 1954 Hyd 44 (A), the facts were somewhat similar. That wits also a suit on a bond in which there was joint and several responsibility and legal representatives of some of the Respondents were not brought on the record. We held that to view of the fact that the responsibility of the Defendants was several in the bond, the appeal could proceed and a final judgment could be passed in the same. See also-- AIR 1943 271 (Nagpur) , in which the suit was for rent against the co-tenants; one of the co-tenants having died pending the appeal, It was held that the liability being joint and several the appeal did not abate as a whole. In--Firm Gunidas Ramkoturam v. Bhagwan Das AIR 1922 Lah 182 (C) and-- Nathuni Narayan Singh and Others Vs. Mahant Arjun Gir and Others, , the question was with respect to the liability of the co-promisors; and it was held that the liability of co-promisors was joint and several; therefore the appeal did not abate as a whole. We, therefore, hold that the appeal does not abate as a whole and is maintainable against the remaining Respondents.

The brief facts of the case are: the Plaintiffs filed this suit for the payment of Rs. 99,000/-and odd on the basis of Ex. No. 1 which is a bend executed by three persons: (1) Mirza Para-varish Ali Khan; (2) Mirza Kazim Ali Khan and (3) Mirza Fiaz Ali Khan, in their own capacity as also in their capacity as guardians of one Sultani Begum, who was described as insane. The Plaintiffs claim that under the terms of the said Ex. No. 1 they had paid the amount of Rs. 40,000/- on different occasions. The Plaintiffs also alleged that Fiaz Ali Khan and Kasim Ali Khan obtained another amount of Rs. 9784/-; that the Plaintiffs were entitled to get a decree for those amounts together with interest; the Plaintiffs also claim interest during the pendency of the suit till realisation in full. The Plaintiffs alleged in Para. 5 of their plaint that they had filed a suit on 2nd Mehir 1327 F. (1918 A.D.) on the basis of the same cause of, action; that the trial Court dismissed the suit holding that it was premature; that on appeal the Pull Bench of the High Court on 9th Amardad 1334 F. held that the suit was premature as the cause of action had not arisen.

The Plaintiffs further stated that the cause of action had arisen to them in view of the judgment of the Fall Bench, as the suits for Mehar and Matruka tiled on behalf of Sultani Begum were finally disposed of.

Defendant 1, Parvorish Ali Khan, (in his written statement), admitted the execution of Ex. No. 1 dated 11th Ardibehist 1317 F.; with regard to the amount of Rs. 9784/- claimed by the Plaintiffs, he stated that if the amount was drawn by Fiaz Ali Khan and Kazim Ali Khan he cannot be responsible for the same as he was no party to the loan. He, further, stated that the original lender, whose legal representatives are the Plaintiffs, did not fulfil the terms of Ex. No. 1, and did not pay the amounts in time. In Para 5 of the written statement Defendant 1 alleged that besides Ex. No. 1 there was another document dated 6th Ardibehist 1317 P., Ex. No. A-4. This document, it was contended, is in some respect a counter part of Ex. No. 1 and that the original lender agreed to advance more money as and when necessary besides the amount of Rs. 40,000/- promised in Ex. No. 1. The Defendant alleged that these two documents should be read together. He alleged that according to the terms of the latter document, if the suits of Sultani Begum were to be dismissed as they were actually dismissed the Plaintiffs will not be entitled to any decree. A plea of limitation was also raised, and it was alleged that the Plaintiffs had not prosecuted the case with due diligence & therefore were not entitled to any exclusion of time. In Para 8 of the written statement, the plea was raised that the contract envisaged in Ex. No. 1 is of a wagering nature and against public policy. The other Respondents'' written statements were similar to that of Defendant 1, though they also pleaded that they had no knowledge of Ex. No. 1; they had also no knowledge whether their ancestors,--the original executants of Ex. No. 1 actually took the loan from the father of the Plaintiff''s.

On these pleadings, the trial Court framed the following issues:

Is the suit within time?

Is the suit barred by res judicata?

Is the suit bond without consideration and against public policy?

Did the Plaintiffs advance Rs. 9784/- besides'' the amount contained in Ex. No. 1?

Did the father of the Plaintiffs execute the document dated 6th Ardibehist 1317 P. (Ex. No. A-4)? H so, what is its effect on the validity of the contract?

Did the father of the Plaintiffs fail to advance the money in Sultani Begum''s case (cases) as a result of which Sultani Begum could not succeed? If so, what is the result of the failure upon the present suit?

Are the Plaintiffs entitled to interest? If so, how much?

Issue No. 8 is of a general nature.

In support of their case the Plaintiffs produced two witnesses, P.W. 1 Abdul Rahman, and P.W. 2 Feroze Shah. P.W. 1, Abdul Rahman is a ''pairokar'' and agent of the Plaintiffs, who deposed that at the time of instituting the previous suit several lawyers were consulted. Mohd. Aminul Hasan was one of those lawyers who gave his advice that the suit could be filed; but he stated that the advice of Aziz Hasan, the late advocate, be also obtained as he was a leading advocate. P.W. 2, Peroze Shah, states that, he obtained the advice of the said late Aziz Hasan as desired by the Plaintiffs. The evidence of four more witnesses recorded in the previous suit was used in this case, as they had died (vide judgment of the trial Court--page 45 of the printed book). We have to record a summary of the statements of these four witnesses also, as the lower Court has not discussed any evidence whatsoever nor is it clear from that judgment'' as to who were those four witnesses, what were their names and what were the facts deposed to by them.

One of those four witnesses was the original Plaintiff in the previous suit who was the original money-lender, Khan Bahadur Shahpurji. He had admitted the execution of the document dated Gth Ardibehist 1317 P. He also deposed that the document was executed and that Piaz Ali Khan, the Defendant, brought it to him; the witness identified the document. He, however, deposed that Sultani Begum got some amount from the Estate of Nawab Salar Jung; that the amount was about Rs. 1,26,000/- and it was part of the Matruka claimed by Sultani Begum. He states that the executants had agreed to pay the amount of Ex. No. 1, jointly and severally.

The second witness is Mirza Parvarish Ali Khan, Defendant 1, and one of the executants of the bond. He states that a suit was instituted for Matruka and Mehar on behalf of Sultani Begum who was of insane mind. The suit was of the value of about 25 to 30 lakhs. He has identified his signature on Ex. No. 1 and also the signatures or the other executants, Piaz Ali Khan and Kazim Ali Khan. He deposes that, according to the terms of the exhibit, Shahpurji was to advance money for carrying on the litigation arising out of the suit filed by Sultani Begum; the method of payment being cash and by cheque as and when necessary for the expenses of litigation. He states that Fiaz Ali Khan and Kazim Ali Khan, the other two executants of Ex. No. 1, took keen interest in the conduct of that litigation and he also admits the receipt of several amounts and also identifies the cheques by which those amounts were drawn. He states that (at the time of his deposition) Sultani Begum''s case was pending before the Judicial Committee. He states that Shahpurji, the original lender, advanced the amount when Sultani Begum''s case was pending before the trial Court. After the decision of the trial Court, Shahpurji stopped payment, but that Fiaz Ali Khan spent money and continued the litigation. After a perusal of the statement of accounts appended with the plaint, he gives the date on Which the last payment was made by the original Plaintiffs.

The third witness is Fiaz Ali Khan. He is also one of the original executants of Ex. No. 1. He also admits the execution of the document and states that he received full amount as mentioned in Ex. No. 1.

The fourth witness recorded in the previous suit and whose statement was used in the suit is Abdul Rahim, Vakil. The purport of his deposition is that Shahpurji had consulted him at the time of the institution of the previous suit and that he had advised that a suit could be filed and a cause of action had arisen. He also states that he advanced money for the litigation instituted on behalf of Sultani Begum. No evidence was produced by way of rebuttal on behalf of the Defendants.

The trial Court decided issue No. 1 in favour of the Plaintiffs and held that the suit was within time. The question of limitation, in our opinion, has become final in favour of the Plaintiffs. The trial Court at one stage of the suit, on 22nd Dai 1339 F., decided that the suit was time-barred. There was an appeal taken up before the Division Bench, which was allowed and the suit was held within time. An appeal by the Defendants instituted before the Judicial Committee was rejected. Thus, the question of limitation has become final.

Issue No. 2 was not pressed before the trial Court and therefore was decided in favour of the Plaintiffs. This has not been pressed before us also.

Issue No. 4 was decided in favour of the Plaintiffs on the strength of the statements of the original executants, Parvarish Ali Khan and Fiaz Ali Khan.

Issue No. 5 was decided against the Plaintiffs and issues Nos. 6 and 3 were also decided against the Plaintiffs and the suit was dismissed.

In this appeal we have to consider the findings of the lower Court with respect to issues Nos. 3, 5 and 6. At the outset, we have to decide whether the payment of Rs. 40,000/- as promised under Ex. No. 1 and the payment of the other sum of Rs. 9784/- have been proved by the evidence. It is proved that the Plaintiffs advanced those amounts to the Defendants to finance the litigation of Sultani Begum. Defendant Fiaz Ali Khan and also to a certain extent Parvarish Ali Khan, had admitted the receipt of this amount. The Plaintiffs have submitted the statement of accounts with the plaint and the Defendant has admitted receiving payment as mentioned therein. It is contended on behalf of the Plaintiffs, that the prior suit was filed when Sultani Begum''s case was decided by the trial Court, but the Court having held in the prior suit, that the cause of action to the Plaintiffs would arise only when there was a final decision in Sultani Begum''s case the Plaintiffs have filed this present suit. It ii clear that the Plaintiffs did not advance any money to finance Sultani Begum''s litigation after that case entered the appellate stage. On the basis of this fact, the lower Court has held that the Plaintiffs have contravened the terms agreed upon in Ex. No. 1. The Plaintiffs did not finance the litigation at the appellate stage and therefore they were not entitled to any decree.

On a perusal of Ex. No. 1, it is clear that the executants agreed to pay the amount of Rs. 40,000/- mentioned in Ex. No. 1 after the disposal of Sultani Begum''s case by the Court and after her realising the amount of her Matruka and Mehar; the document states that the executants have obtained Rs. 40,000/- for the purposes of the expenses of the suit of ''zar-e-mehar'' and Matruka of Sultani Begum, (who was their mother); the executants further agreed that they will pay the amount jointly and severally. So far as this document is concerned, it is clear that the Plaintiffs were to receive the amount of Ra 40,000/- with interest after the judgment of the trial Court and after the realisation of the Mehai and Matruka in Sultani Begum''s suit. It is argued that the reference to the realisation of the Matruka and Mehar amounts was to indicate the time at which the Plaintiffs were entitled to receive the amount, and that it does not mean that the Plaintiffs will not receive the amount on the bond, if Sultani Begum was not able to realist the Mehar and Matruka amounts.

The lower Court has dismissed the suit on the ground, that Ex. No. 1, read with Ex. No. A-4 made it incumbent for the Plaintiffs to finance the litigation till the final stage of the case. We are, therefore, to examine Ex. A-4. dated 6th Ardibehist 1317 F. Paragraph (1) of this Ex. state: that the executants have received the loan of Rs. 40,000/- from Shahpurji, the lender, and execute a separate bond for the sum; that the said amount was drawn for the purpose of expenses of stamp duty and the remuneration of the lawyers, etc, in the suit to be filed on behalf of Sultani Begum This statement in para. 1, read with the contents of Ex. No. 1, make it abundantly clear, in our opinion, that the amount of Rs. 40,000/- drawn under Ex. No. 1 was for the expenses necessary for conducting the litigation in the trial Court Thus, there is considerable force in the argument of the learned Advocate of the Appellants that what was written in Ex. No. 1, with respect to the realisation of the Mehar and Matruka amounts, denotes only the time at which the Plaintiffs will be entitled to get the amounts on the suit bond.

This is further clear from some more statements made in Para 1 of Ex. A-4. It is provided in, Para. 1 that if the executants feel it necessary to have more money in addition to the sum of Rs. 40,000/- for conducting the litigation in the trial Court or for the purposes of appeal, revision, etc, then the executants will execute separate documents for such moneys and then will take a loan, of those moneys from the lender. Thus, it is clear that the payment of the moneys for the purposes of appeal or for purposes of revision, etc, was not a necessary ingredient under Ex. No. 1 for the Plaintiffs'' cause of action. It was argued on behalf of the Respondents that the statements in Ex. A-4 read with Ex. No. 1, should be considered as one whole transaction and contract and when so considered the contract becomes cham-pertous and is contrary to public policy. The learned advocate for the Appellants argues that the suit of the Plaintiffs is based on Ex. No. 1. There is no mention of any Champertous agreement in that Ex. No. 1. The main cause of action. I was on the basis of Ex. No. 1, and it was purely a prayer for the payment of the moneys actually advanced by the Plaintiff''s to the Defendants and spent by the Defendants in instituting the suit and making other incidental expenses with respect to Sultani Begum''s case. We find on a perusal of Ex. No. 1 that there is considerable force in the arguments of the learned advocate. We will discuss this question of Champerty and maintenance later on.

The learned advocate for the Appellants argues that the contracts in the two documents, Ex. Nos. 1 and A-4, are quite distinct and separate and cannot be read as one contract. He argues that the dates of the two documents are different. The contents of the two documents are also different. In the document in suit (Ex. No. 1) there Is no contract that the Plaintiffs will be entitled to recover-the sum of Rs. 40,000/- out of the one-fourth share'' of the property which will be decreed in Sultani Begum''s case or that they will be entitled to one-fourth share of that property. It is argued that Ex. No. 1 is a loan advanced to the executants for the purposes of meeting their costs in filing the suit on behalf of Sultani Begum. There is nothing to show that the document was in the nature of maintenance or champerty.

He further argues that under Para. 9 of Ex. A-4, there is a definite condition that if the money be not advanced by the original lender for contesting Sultani Begum''s litigation at any of the stages before the original or appellate or execution Courts, then the lender will not be entitled to make any demand for one-fourth share of the decree which may be obtained by Sultani Begum. No such condition is inserted in Ex. No. 1; therefore, it is argued, that the two documents ere quite separate. There is no agreement in Ex. No. 1 in the nature of a bargain, whereby the lender was to assist the executants in recovering Sultani Begum''s property and to share the proceeds of that action. We accept the said argument. In our opinion, the two contracts in the two exhibits are quite distinct. If there was any idea in the minds of the parties to merge the two contracts together at the time of Ex. No. A-4 was written on the 6th Ardibehist 1317 F., it is very clear that the parties did not stick to that idea inasmuch as no such terms were incorporated in Ex. No. 1, which is a subsequent document dated 11th Ardibehist 1317 P. The argument of the Respondents, that failure to advance money at the appellate and subsequent execution or other stages is fatal to the suit, must, therefore, be rejected so far as the present suit based on Ex. No. 1 is concerned.

The learned Advocate for the Respondents argues that, in view of the statement made in Para. 4 of Ex. A-4, the Plaintiffs are not entitled to recover Rs. 40,080/- on the basis of Ex. No. 1. We have read that paragraph very carefully. It states that if Pour Annas share of the decree in Sultani Begum''s case be recovered by the lender, < then the lender will return the document (Ex. No. 1) and that he will not be entitled to make any demand on the basis of Ex. No. 1. It is conceded that the lender has not recovered one-fourth share or any share in the decree in Sultani Begum''s case; as a matter of fact, no decree has been passed in favour of Sultani Begum; it is stated that Sultani Begum''s suit was dismissed because it was withdrawn. Hence, the application of the provisions of this paragraph does not arise in this case. Moreover, the fact that this condition was not incorporated in the document, Ex. No. 1, is also worth consideration and makes the applicability of the provisions of Para. 4 nugatory.

In Para 6 of Ex. A-4, it is stated that if for some reason the decree in" Sultani Begum''s case cannot be executed or that the money recovered therein is insufficient to meet the debts obtained from the lender, then the executants of the document will be responsible for the payment of all the debts to the lender. That also shows that it was not purely a bargain to share the proceeds of the suit. It is evident from the contents of Ex. No. 1 that the sum of Rs. 40,000/-was advanced to the executant; of the documents for meeting the expenses of Court-fees and other legal remuneration, etc., in the suit to be filed on behalf of Sultani Begum. There is no provision in that document which binds the lender to advance the money at the appellate or other stages. We, therefore, cannot agree with the opinion of the lower Court that non-payment or failure to advance money at the appellate and subsequent stages as per Para 1 of Ex. A-4 is fatal to the suit. In fact, the subsequent document, viz., Ex. No. 1 on which his suit is based, does not cast any liability upon the lender to advance money at the subsequent stages, namely, of appeal, execution, etc. We are, therefore, of the opinion that issue No. 5 should be decided in favour of the Plaintiffs and that the prior document dated 6th Ardibehist 1317 P. (Ex. A-4) does not operate as a bar to the present suit.

With respect to issue No. 6 we are of the opinion that the Plaintiffs, not having bound themselves to advance money at the appellate or other stages in Sultani Begum''s suit, their failure to advance money at those stages cannot affect the present suit.

We will now discuss issue No. 3 as to whether the suit bond and the loan advanced thereunder are without consideration, champertous and against public policy. The lower Court, while deciding this issue against the Appellants, has not discussed any case law on the subject. It is of the opinion that money advanced on Ex. No. I was not utilised by the executants for their personal benefit; and that it was utilised for providing expenses in Sultani Begum''s case. Therefore it should be declared as against public policy and unenforceable.

The Plaintiffs did not say that they advanced money for the personal use of the executants but they had reiterated in the plaint that it was advanced to the executants on their statements that it will be used for instituting suit in Sultani Begum''s case and meeting the incidental expenses. We have to see whether such an advancement of the loan is contrary to public policy or champertous.

With regard to Champerty and maintenance it is to be noted that it is a principle of English Common Law and it has been held that the specific rules of English Common Law against maintenance and Champerty have not been admitted in India and therefore are not applicable here. In--Indar Singh v. Munshi AIR 1920 Lah 123 (2) (E), it was held that:

The English Law of Champerty is not in force in India and fair agreements made by claimants of property in litigation to share it with others on their obtaining decrees, in consideration of funds being applied by the latter for carrying on their suits, are not in themselves opposed to public policy; nor are they necessarily void; but such agreements when extortionate, are inequitable and in that case should not receive effect.

In this appeal, there is no agreement to share the property so tar as the suit bond is concerned. Therefore, the principle laid down in the above Lahore case ''AIR 1920 Lah 123 (2) (E), is applicable with greater force in favour of the Plaintiffs.

In last, some of the Indian rulings have gone to the extent of stating that such agreements to share the proceeds of litigation may, in some cases, be:

In furtherance of rights and justice, and necessary to resist oppression; that a suitor who had a just title to property and no means except the property itself, should be assisted in this manner.

This was the view expressed by their Lordships in--''Ram Coomar Coondoo v. Chunder Canto Mookerjee 4 Ind App 23 at P. 47 (PC) (F). In--Raja Rai Bhagwat Dayal Singh v. Debi Dayal Sahu 35 Ind App 48 (PC) (G) their Lordships of the Privy Council clearly laid down that an agreement which is champertous according to English Law was not necessarily void in India; it must be against public policy to render it void in India. A present transfer of property for consideration by a person who claims it as against another in possession thereof, but who has not yet established his title thereto is not for that reason opposed to public policy. Sec--Achal Ram v. Kazinv Husain Khan 32 Ind App 113 (PC) (H).

It was also observed that an agreement is not to be regarded as opposed to public policy merely because the payment of the major part of the consideration is made to depend on the transferee''s success in the suit to be brought by him to recover the property. Thus, the argument that the said document is against public policy must be rejected. In--Hiralal v. Dagdoo'' AIR 1920 Nag 69 (I), it was held that there was no law similar to the law of Champerty and maintenance prevailing in England; that to render a contract invalid something against public policy and justice must be proved and established. It does not appear from the facts of this appeal that the litigation in Sultani Begum''s case was merely a speculative affair. In fact, as mentioned in Ex. No. 1 there is nothing to show that it was not a bona fide litigation for which the money was advanced by the lender. There is material on the record--vide statement of witness Shahpurji--to prove the fact that actually sultani Begum received money to the tune of a lakh and more due to her claim from the estate of Nawab Salar Jung. Therefore, such an advancement cannot be said to be against the public policy.

The question of champerty and maintenance arises, if at all, only with respect to Ex. No. A-4. All the arguments advanced by the learned advocate for the Respondents are with reference to Ex. A-4 in which one-fourth share of the property to be recovered in execution of the decree in Sultani Begum''s case was to go to the share of the lender.

The counsel for Respondents contended that Ex. A-4 is champertous and also extortionate and unconscionable; as such, it must be regarded as void and no decree can be given to the Plaintiff on such an agreement. He relies upon the cases of--Kunwar Ram Lal v. Nil Kanth 20 Ind App 112 (PC) (J);--Rajah Mokham Singh v. Rajah Rup Singh 20 Ind App 127 (PC)(K);-- AIR 1940 19 (Privy Council) --Husain Bakhsh v. Rahmat Husain 11 All 128 (M) and--Venkata Pathiraju Garu v. Venkata Subhadrayyamma AIR 1919 Mad 718 (N). In our opinion, these rulings do not support the contention of the Respondents.

In the case of 20 Ind App 112 (PC) (J) their Lordships of the Privy Council observed:

The English Law of Champerty is not in force in India, and agreements to share the subject of litigation, if recovered, are not in themselves opposed to public policy; but such documents should be jealously scanned, and, when found to be extortionate and unconscionable, they are inequitable as against the party against whom relief is sought, and effect should not be given to them. The Plaintiff in this suit was a money lender, and was dealing with illiterate persons, he must have represented to them the likelihood and the necessity of extensive litigation--a representation unwarranted by the facts; further the fee paid to the Vakil, Bansilav, was most excessive, and disproportionate to any work likely to be done by him.

In such circumstances, their Lordships'' of the Privy Council awarded Rs. 1000/- as compensation to the Plaintiff. This case is not at all applicable to the case under consideration, because the Defendants have not proved, nor has the lower Court held that the agreement was extortionate or unconscionable. In fact what the Plaintiff is asking is only the sum which ho has paid to the Defendants. The agreement, Ex. A-4 also does not contain any extortionate or unconscionable bargain between the parties. Therefore, this case is not of any help to the Respondents.

In the next case of "20 Ind App 127 (PC)(K)'', the agreement between the parties was that the Plaintiff should advance funds necessary to enable the Defendant to prosecute his appeal in the Privy Council, and in lieu thereof, the Defendant was to transfer one-eighth share of the property involved in the case. The finding of the High Court was that the reward stipulated for in lieu of the promise to advance funds necessary for prosecuting the Privy Council case was excessive and unconscionable. The Privy Council accepting this finding dismissed the appeal. This case also is not of any help to the Respondent. There was a disproportion in the liability which the Plaintiff incurred under the contract and the amount of the award which they were to obtain in the event of the Plaintiff succeeding in the Privy Council. There is nothing like that in the case under consideration; and it does not lend support to the contention of the Defendants.

In-- AIR 1940 19 (Privy Council) their Lordships of the Privy Council, following--''4 Ind App 23 (PC) (P)'', have held that:

A fair agreement to supply funds to carry on a suit in consideration of having a share in the property, if recovered, ought not to be regarded as being, ''per se'', opposed to public policy.

This case also does not help the Respondents in any way.

In the case of ''AIR 1919 Mad 718 (N) V relied upon by the Respondents, their Lordships of the Madras High Court held that:

Where a person agrees to advance moneys to another from time to time upto a certain limit with the object of financing a litigation by the latter, but fails or refuses to pay the full amount he is, nevertheless, entitled, u/s 64 (of the Contract Act) to a refund of the amount actually, paid by him.

Further, it was held that even though the contract was champertous, the promise is entitled to recover what he has advanced, in the event of the litigation ending successfully to the promisor this case not only does not support the contention of the Respondents, but goes to lend support ! to the case of the Plaintiffs, because their Lord ships held that a person advancing money is entitled to refund of the amount actually paid by him, even though he refuses to further advance the money, or even when the agreement becomes champertous.

Finally, in the case of--''11 All 128 (M)'', relied on by the advocate for the Respondents, the brief facts relevant for our purpose were: that for the purpose of meeting the expenses of the litigation, Hussain Bakhsh and Nabi Bakhsh, the Plaintiffs, executed jointly with the Defendants, Rahmat Hussain and Amanat Ali, an agreement whereby it was provided, ''inter alia'', that the Defendants should pay all the Plaintiffs'' expenses of the suit from the Court of First instance to the High Court, and that, in consideration of such payment, and in the event of the Plaintiffs being successful, the Defendants should be entitled to half the land recovered with half mesne profits and all costs incurred by them in the suit. And this half portion came into the possession of the Defendants, when the suit was finally decided in favour of Hussain Bakhsh and Nabi Bakhsh. Hence the suit was filed by the latter on the ground that the agreement was unfair, unreasonable, extortionate and contrary to public policy.

Their Lordships of the Allahabad'' High Court held that the agreement was unfair, unreasonable, extortionate and contrary to public policy within the meaning of Section 23, Contract Act, and that the Plaintiffs were entitled to recover possession of the land in suit on payment of compensation for the advances made by the Defendants in the former litigation, with interest at 12 per cent, per annum. In the case under consideration, the Plaintiffs claim nothing but the sums advanced to the Defendants, which is clearly fair, reasonable: and equitable, and hence the case referred to does not support the view point of the Defendants but that of the Plaintiffs.

Even if we consider that agreement as a sort of a bargain, nothing has been proved to show that it was extortionate or unconscionable. Moreover, this term of bargaining nature provided in Ex. A-4 has not been incorporated in the suit document, Ex. No. 1. The question of Champerty and maintenance, therefore, does not arise and we are of the opinion that the agreement envisaged in Ex. No. 1 is not of an extortionate or unconscionable nature and, therefore, there is no reason to regard it as unenforceable or against public policy.

In-- AIR 1931 100 (Privy Council) , the facts were: that a suit was to be conducted by the Appellant, Ramanamma, against her brother, and for this purpose she sought the help of the Respondent, Marina Viranna, who consented to help her; whereupon a document was drawn up in two parts by the terms of which Veeranna was to contribute one quarter of the costs of the litigation, and, in the event of failure, to pay one quarter of any costs that might be awarded to the other side; and in return Bamanamma was to make over to him one quarter of whatever she might recover.

Ramanamma succeeded in her suit and Veranna was put in possession of 13 acres of land; but quarrels ensued; whereupon Veeranna brought the suit to enforce the agreement, and Ramanamma set up the plea of want of authority to the execution of the document. It was held that:

In India agreements to finance litigation in consideration of having a share of the property, if recovered, are not ''per se'' opposed to public policy. They may be so, if the object of the agreement is an improper one, such as, abetting or encouraging unrighteous Suits, or gambling in litigation or their enforcement against a party may be contrary to the principles of equity and good conscience as unconscionable and extortionate bargains.

Applying the principles laid down in this Privy Council ruling to the facts of the appeal before us, we do not find that the agreement in Ex. No., 1 was entered into for any improper object. There is no material on the record to hold that it was intended to encourage or abet the litigation o Sultani Begum, which is unrighteous, in its nature. There was no question of gambling in litigation; nothing has been shown to indicate or to substantiate the proposition that the agreement was against the principles of equity; or in any way unconscionable or extortionate. See also--Abdul Kasim Beg v. Ehsanul Ghani AIR 1921 Oudh 207 (P),'' in which the proposition that in India Champertous bargains are not illegal had been reiterated. It was held that champertous bargains should be probed into and regarded as enforceable or otherwise on the same principles as govern any other ordinary bargains. See also--''Latif v. Pandhari AIR 1923 Nag 214 (Q).

In-- Gollapudi Seshayya Vs. Nadendla Subbayya and Another, , a similar view as expressed in-- AIR 1931 100 (Privy Council) '', has been laid down. In-- Marina Viranna Vs. Valluri Ramanamma, , it was hold that the English principles of champerty and maintenance are not applicable in India. See also--Banarasi Das v. Sital Singh AIR 1930 Lah 392 (T). In--Scottish Union & National Insurance Co. v. Rousham Jahan Begum AIR 1945 Oudh 152 (U), it was held that in India, Champerty is not a crime.

31 We are of the opinion, therefore, that the agreement in Ex. 1 is not against public policy nor of a gambling nature; it is enforceable and in no way contravenes public policy. We, therefore, disagree with the view expressed by the learned Judge of the lower court.

In view of the above discussion, the claim of Rs. 40,000/- advanced under Ex. No. 1 must, in our view, be decreed. With respect to the other claim of Rs. 9,784/- which Were presumably advanced under Ex. A-4, it is clear that the Plaintiffs are not claiming any property, but only the actual amount which they advanced and which is proved by evidence. Such an advance is not against public policy. They are, therefore, entitled to have a decree with respect to that amount. As regards interest, the Plaintiffs stated in Para 10 of the plaint that they have calculated interest at the rate of As. /-12/- per cent, per month & that a sum of Rs. 85,708-9-8 was due till the time of the filing of the suit, out of which they have claimed only an amount equal to the principal amount advanced, viz., Rs. 49,784/- (under both items). The claim of interest up to the date of the suit is therefore fair; and must also be decreed. With respect to the claim of interest ''pendente lite'' until realisation in full, we are of the opinion that the Plaintiffs should get interest at the rate of 3 per cent, per annum on the decretal amount until realisation in full.

In the result, we therefore allow the appeal and set aside the decree and judgment of the lower court and decree the suit as above against the remaining Respondents with costs throughout Appeal allowed as above.