R V RAJARATHNA CHETTIAR Vs. SHARI SHAICK MAHBOOB SAHIB

JUDGEMENT

(1.) In order to appreciate the questions which arise in this appeal it is necessary to trace the course of events for some eleven years before the institution of the suit. The grandfather of respondents 2, 3, 4 and 5, one Chidri Ismail, was a dealer in skins and hides and carried on business in partnership with another Mahomedan, named Dhabaywallay Manjalay. In 1921 Chidri Ismail instituted on the Original Side of this Court a suit (Civil Suit No. 697 of 1921) for the dissolution of the partnership and for the taking of accounts. He died before the suit came on for hearing and his heirs were made plaintiffs in his stead. Chidri Ismail had a son, Chidri Abdul Rahiman, and a daughter, Masum Bi. Chidri Abdul Rahiman married one Sakina Bi, by whom he had three children, respondents 3, 4 and 5 in this appeal. Masum Bi married respondent 1 and respondent 2 is the issue of that marriage. Chidri Ismail's son, daughter, son-in-law, daughter-in-law, and his four grand-children were all made plaintiffs in the suit. The grand-children were minors and were minors at all times material to the questions involved in this appeal. Masum Bi died in 1924 and Chidri Abdul Rahiman in 1925. On 16th August 1926 the partnership suit was dismissed for default and on 7 September 1926 an application was filed on behalf of the surviving plaintiffs asking for its restoration to the list.

(2.) On 10 December 1926 the application was granted so far as the minor plaintiffs were concerned, but was dismissed as against the major plaintiffs, Sakina Bi and ?respondent 1. The major plaintiffs appealed, %ut the appeal was dismissed on 8 February 1929 on the undertaking that no objection would be taken by the defendant-respondent to the minor plaintiffs proceeding with the suit and recovering whatever they were entitled to as heirs of Chidri Ismail. On 11 December 1929, a preliminary decree was passed in favour of the minor plaintiffs and the Official Referee was directed to take the accounts. On 4 March 1929, the Official Referee submitted his report, but before it was taken into consideration by the Court a compromise was agreed upon under which the defendant was to pay to the minor plaintiffs a sum of Rupees 50,000 in satisfaction of their claims, and a ?decree embodying the terms of the settlement was passed. The partnership assets included immovable properties and the receiver who had been appointed was authorized to realize sufficient of the properties to pay the amount to the minor plaintiffs. The minor plaintiffs were without funds to carry on the litigation and the appellant ?alleges that he financed the suit and also provided money for their maintenance. On 20 March 1928, an agreement was entered into under which the appellant was to provide Rs. 1000 for the expenses of the suit and of the appeal of the major plaintiffs against the order dismissing the application for restoration so far as they were concerned. For his financial help the appellant was to receive one-half of what was recovered as the result of the suit, after allowing for the repayment of the loan. There was no provision in the agreement for the payment of interest. In his plaint Chidri Ismail had valued the relief sought by him at Rs. 1,50,000. The agreement was signed by respondent 1 on his own behalf and as the guardian of respondent 2, and by Chidri Jehangir, the brother of Chidri Ismail, on behalf of himself and of respondents 3, 4 and 5. Chidri Jehangir was acting as the next friend of respondents 3, 4 and 5 in the partnership suit and at the most can only be regarded as a de facto guardian.

(3.) On 3 September 1932, the appellant instituted the suit out of which this appeal arises. He claimed to be entitled to Rupees 30,992-0-9 made up of Rupees 5992-0-9, the amount which he alleged he had advanced for the maintenance of the minors and for the expenses incurred in C.S. No. 697 of 1921, and Rs. 25,000 being one-half of the amount decreed in that suit. The case was tried by Wadsworth, J. who held that it had not been proved that any amount had been advanced by the appellant for the maintenance of the minors, but that the agreement of 20 March 1928 was binding on them subject to "relief against harshness." He considered that it would not be fair to allow the appellant to have the half of the decretal amount but he was of the opinion that he was entitled to recover all that he had advanced for the purposes of the litigation with interest at 20 per cent. On this basis, he directed the Official Referee to take an account of the moneys advanced for the expenses of the previous suit. The Official Referee took the account on the basis of actual expenditure and having received the report the learned Judge passed a decree against the respondents for Rupees 10,733-3-11. Of this sum, Rs. 4727-9-9 represented advances by the appellant for the expenses of the previous suit and Rupees 6005-10-2 interest thereon at 20 per cent. per annum. The appellant has appealed against the decree and the minor respondents have filed a memorandum of cross-objections. Before us the appellant has not pressed his claim that he should receive half the amount awarded to the minor plaintiffs in Civil Suit No. 697 of 1921, but has contended that he should be allowed interest at the rate of 75 per cent, per annum on the sums which he advanced for the purposes of the suit. He challenges the finding that he had advanced no money for maintenance and says that he should, be awarded in this connexion Rs. 1264-7-0, being the difference between Rs. 5992-0-9, the amount claimed for maintenance and litigation expenses, and Rs. 4727-9-9, the amount awarded for litigation expenses. Respondents 2, 3, 4 and 5 have raised the following contentions : (1) the agreement of 20 March 1928 is not binding upon them; (2) even if the appellant could have claimed relief under Section 68, Contract Act, he is barred from the benefit of that Section because the suit was based on the agreement and no alternative plea was advanced; (3) in any event, the appellant is not entitled to interest on the sums advanced by him; (4) the account had been taken on a wrong basis; and (5) Art. 61, Limitation Act, applies in respect of all sums advanced by the appellant.