Amirtamayi Dasi vs Grose and Another

Phear, J.—On the 29th February 1836 Ramtanu Chandra died, leaving five sons who continued for some time to live in joint enjoyment of the paternal estate. On the 25th October 1847 Madhusudan Chandra, one of these sons, also died leaving Bamasundari his widow then 11 years old. There was no other widow and Bamasundari was childless, but be left besides an only daughter, Amirtamayi, the plaintiff in this suit, his child by another wife who had predeceased him. After his death the surviving brothers retained the enjoyment and use of the whole estate. At length disagreement arose between them and Bamasundari; but it is not necessary that I should go into details relative to what took place between October 1847 and April 1859. During this interval Bamasundari made certain claims on the brothers in respect of her husband''s share in the family property, and I believe she instituted more than one suit against them; certainly one suit, before 1859. On the 4th April of that year she entered into an agreement with the defendant Charles Grose by which, after reciting the material facts as to the condition of the family and of the property, and as to the nature of her claim, and stating that she was unable from poverty to prosecute that claim, she assigned to him all which she might be entitled to recover and receive from the estate of Ramtanu in right of her deceased husband, together with all interest and accumulations which had accrued or might thereafter accrue thereon, and all benefit and advantage to be bad or derived from the suit about to be instituted, and she appointed Charles Grose her attorney to institute and carry on any suit or suits in her name for the purpose of recovering her right and share in this property; and it was then agreed that of the property which might be recovered, Gross should in the first place retain one moiety for his own absolute use and benefit by way of remuneration and reward for his trouble and labor in the conduct and management of the contemplated suits and proceedings, and as to the remaining moiety, that he should repay himself all such sums as be might from time to time have advanced and paid for the maintenance of Bamasundari, with interest at the rate of 12 per cent. per annum, and also all such sums and costs as be might from time to time have advanced or been put to in carrying on and managing the suits, with 12 per cent. per annum interest, and should pay over the residue to Bamasundari herself. Although this agreement does not make mention of any existing suit brought by Bamasundari, Grose in his evidence before me stated that such a suit was existing at the time of the agreement, but was almost immediately afterwards withdrawn. On 20th May 1859 Bamasundari acting through Grose filed a fresh bill against her husband''s surviving brothers for recovery of her husband''s share in the estate together with accumulations. On 19th August 1861, a decree was made by the Supreme Court in that suit to the effect that Bamasundari was entitled to one-fifth share of the accumulations which had been made by the brothers to Ramtanu''s estate between the death of Ramtanu and the death of Madhusudan, and also to the gains and profits made by Madhusudan''s brothers by the use after his death of this one fifth share of the accumulations, the whole to be enjoyed by her as a Hindu widow in the manner prescribed by the Hindu law;" and finally by a decree made on 8th August 1864, affirmed on 8th January 1866, the share of the accumulations belonging to Madhusudan at the date of his death was determined to be rupees 84,685, and in lieu of the subsequent gains and profits thereon 10 per cent. per annum on this sum was awarded to Bamasundari. In pursuance of this decree the defendants have paid into Court a sum which I am told amounts to rupees 2,40,000.

The plaintiffs in the present suit are Amirtamayi and her infant son. They, on behalf of the reversionary heirs, sue to have this agreement of 4th April 1859 between Bamasundari and Grose (together with any sub-assignments that may have been made on the footing of it set aside as being a void contract, and they further in substance ask for an order that the money should be paid into Court and there kept during the life of Bamasundari for the benefit of the reversionary heirs. It is obvious, passing by for the moment the misjoinder of Amritamayi''s son with herself as plaintiff, that she has no personal rights to vindicate; she can only properly stand before the Court on two grounds. These are, firstly, she may be entitled as the present representative of the ultimate heirs to come into Court for the purpose of preventing the risk of losing evidence by lapse of time, and may ask that the validity of the deed considered as an alienation against the interest of the ultimate heirs may be tried now instead of waiting until the death of the widow for this purpose, or secondly, she may come into Court also in the interest of the ultimate heirs to protect the property from actual waste, and to keep it intact during the widow''s enjoyment of it. The plaint in this case is unfortunately not framed with any clear conception of the plaintiff''s rights of suit, neither is the history connected with it, and the words made use of in the body of it altogether creditable to the persons who were concerned in filing it. I think however that I ought to treat it as raising both the objections which I have mentioned on behalf of the ultimate heirs. Upon the foundation of this plaint and the subsequent written statement of the plaintiffs, which I am bound to say does not offend in the same manner as the original plaint, very many issues have been raised, as many as seventeen in all. Some of these have been abandoned and others are I think unnecessary on the facts which have come out, and it seems to me that substantially there are but four principal questions or issues to be determined in this suit.

1st.--Is the suit barred by lapse of time?

2nd.--Was the alienation to Grose void by Hindu law as against the reversionary heirs?

3rd.--Was it absolutely void as being contrary to public policy within operation of any law affecting champerty and maintenance?

4th.--Ought the money to be brought into Court and there retained for the purpose of preventing waste?

I may however say, that as the money has in fact been brought into Court, this last issue is now confined to the question whether the money should be retained in Court for the purpose of preventing waste.

Now taking the first issue I think if I were compelled to treat the plaint simply as asking for a declaration that the deed of 1859 was void, the suit would be barred by lapse of time. But I have already said that the plaintiff as representing the reversionary heirs has another alternative, which is that she can come into Court to prevent waste whenever waste is threatened, and in this case the plaintiff distinctly asks for relief against waste. Hitherto without doubt there has been no waste; the property is safe enough where it is; but if the contract between Bamasundari and Grose is void on either of the grounds which I have specified, then payment of the money out of Court in pursuance of the terms of that contract would, I think, be unmistakeable waste. It seems to me that the fact of the contract of alienation being a material element to be considered in the question whether or not such a payment would be waste, does not have the effect of carrying back the date of the contemplated waste to the date of the contract, and therefore the plaintiff is in time to question by this suit anything which may result from handing over this property to the alienees under the contract of 1859. Coming next to my second question I think I ought to hold that the alienation is void by Hindu law as against the heirs. All contracts of alienation of property, as I understand the Hindu law, which are made by a Hindu widow during her limited enjoyment of the inheritance, are liable to be avoided by the heirs on her death, unless the aliened can defend the alienation by showing, either that there was in fact lawful occasion for the alienation, and that the bargain was fair and reasonable; or if this was not actually the case, that he at least acted fairly and honestly and was led by bona fide enquiry to believe that there was such occasion. Now Grose''s evidence in this case leaves no room to doubt that there was no enquiry whatever on his part. He cannot for a moment be allowed the benefit of the last alternative. Then was the alienation in fact justified; that is, was there lawful occasion for it, and was the consideration under the circumstances commensurate with the property decreed. Now on this point again I take it that no one can have the least doubt that the transaction was one purely of a gambling character. I think it is true there was lawful occasion for Bamasundari to aliene a portion of the property, or for her to create an incumbrance upon it, and no doubt under the circumstances of the case in any negotiation for this purpose she must have expected that the consideration she should obtain would be relatively small as compared with the burthen placed on the property. But here Bamasundari got no consideration that could be termed definite in any sense. Grose gave time and labor, the latter not skilled or professional labor, for the chance of half of what should be recovered; he did not give any sum of money out and out. If anything substantial should ever be recovered he would get his money back again in addition to the half share of the property. He did not even attempt to estimate what would be the cost to him of carrying on the suit. There was no sort of calculation made of what the consideration (if any) given by him amounted to; and so far as I can see there was no obligation incurred on his part to expend any more money, time, or trouble than might just please himself There is nothing in the contract (unless it is to be supplied by implication on some principle of equity) which should prevent him from giving up the matter at any stage he chose. In short, this was nothing more or less than a pure gambling transaction, not to be defended in my judgment as against heirs under Hindu law.

As regards the 3rd issue, it is a little difficult to say how far the English law against champerty and maintenance at present reaches. Sir E. Barlow was not altogether so unhappy in the use of the words dead letter" as Mr. Kennedy in his argument seemed to imply. In Story''s Equity Jurisprudence, section 1057(c), the writer suggests that the Common Law notion of maintenance as applicable to the assignment of rights of action has become practically obsolete; and even in Chitty''s Statutes Title "Champerty Note, the observation occurs that the doctrines of maintenance, champerty, and buying of titles are become in a great measure obsolete as matter of criminal law, and very seldom come into notice as affecting the validity of contracts. Still, there undoubtedly does exist in England even now a law forbidding champerty and maintenance. The change which has taken place is not properly speaking in the law itself, but in the circumstances of society which have so altered as to elevate a large class of transactions out of the mischief named champerty and maintenance, and thus to leave the subject shorn of its original dimensions. If we go back to the accepted definitions, we find that maintenance in general signifies an unlawful taking in hand or upholding of quarrels or sides to the disturbance of common right; and champerty is but a particular form of maintenance. namely the unlawful maintenance of a suit in consideration of some bargain to have part of the thing in dispute or some profit out of it. The essential element of the mischief is I apprehend the disturbance or hindrance of common right; and the forms in which this appeared most prominent to the eyes of the statesmen and jurists of England in early days were those of judicial corruption, and the practice of buying upon speculation controverted rights and titles which the owners themselves did not think it worth while to prosecute. Where persons, who by their position have the power to influence the fate of a cause in its progress through the Court are in the habit of bargaining with the suitors for their rights, there all impartial administration of civil justice is at an end; and it was to meet an evil of this sort that the Legislature of Edward 1st 3 Edw. I.C. 25; 13 Edw. I.C. 49; 28 Edw. I.C. 11 specifically prohibited any officer connected with Courts of law from purchasing titles of land depending in suit. Again with any complicated system of proprietary rights there must exist oases in considerable numbers in which, although the strict legal rights of parties relative to same subject of property are not ascertained, indeed are in some sort disputed, yet the parties themselves prefer peace and quietness with their neighbours to the vexation and harassment of a law suit in assertion of a doubtful claim. It is manifestly much to the public interest that this disposition to forbearance should prevail and therefore should be protected from artificial disturbance. Accordingly it is the policy of the English law to repress all fostering of litigation by third persons whose motive is not the desire of vindicating right, but the hope of speculative gain. In this spirit the Statute of Henry VIII 32 H. VIII. C. 9 forbade the assignment of any rights or titles, of which the assignor was not in the enjoyment at the time of the transfer. The circumstances of society in England have no doubt long ceased to be such as to call for the indiscriminating enforcement of sweeping enactments like these, and they have become practically obsolete. The purchase of a title pending in suit (even by a Queen''s Counsel) is not now necessarily invalid, and the assignment of a chose in action is not of itself contrary to modern law.

Nevertheless, as I have already said, the principle of public policy which once found action in these Statutes is still operative; and the Courts both of law and Equity give effect to it as part of the Common Law of England. It is important however for the right understanding of its application, that it should not be confounded with any of the rules of equity under which a transaction between parties is judged of solely with regard to the conduct of the parties towards each other.

The late Lord Justice Turner in the case of Knight v. Bowyer 27 L.J. Ch. 820 where "objection was made on the part of the appellants to the title of some of the plaintiffs, upon the ground that their interests were acquired by means of a purchase which was illegal and invalid as being affected by the laws relating to champerty and maintenance," said that "in order to maintain the objection as an answer to the suit the appellants must show that the purchase was illegal and void upon principles of public policy, upon grounds far higher than the mere interest of the parties." So far then as the present issue is concerned I have to look to the general nature of the transaction, and to consider it in reference to the interests of the community at large rather than to its merits as between'' the parties; and in this aspect it is not now-a-days a critical fact that the subject of the contract was matter in suit or about to be put in suit, for as Lord Justice Turner also remarked in the course of the above cited judgment, the cases abundantly prove that property which is in litigation may be made the subject of sale and purchase. Still I think (be character of Grose''s dealing with Bamasundari is to a considerable extent affected by the element of uncertainty involved in her claim against the Chandras. She was not suing to recover specific property or an ascertained sum of money, but she was seeking an account and a decree for the amount which should ha found due on that account, and the transaction between her and Grose amounted to this, namely, an assignment to Grose absolutely of one moiety of her expectations, and an assignment to him of the other moiety as security for the costs and charges which he should be at in carrying on the suit in her name, the whole contract being made in consideration of his conducting the suit as her attorney, and advancing moneys necessary for its prosecution. I omit mention of the rupees 16 per month maintenance, because it was an entirely insignificant ingredient in the bargain. Now in acting thus, Grose was unmistakably maintaining and upholding Bamasundari''s suit for the sake of a share, and that the lion''s share, in the ultimate fruit. Moreover, it seems to me to be the effect of the deed between Bamasundari and Grose, that Grose staked the outlay which was to be made by him against reimbursement and remuneration out of the property to be recovered. Bamasundari was not made personally liable to repay Grose his costs and expenses, nor did he obtain any other security for them than that founded on the success of the suit. This I need hardly say is undisguised champerty forbidden by the law in England as a transaction detrimental to the general interests of society. If therefore I have to apply English law to the determination of the issue which is now under my consideration, in the same way as it would have been applied if the facts had occurred in England, it cannot be doubted that I must declare the contract in question to be void.

But it is said that in hearing this suit the Court is exercising its extraordinary jurisdiction; that the law, by which its decision must be governed is the law prevailing in the Mofussil, and that there is nothing in that law to invalidate a contract of this sort. The starting point of this argument, as it seems to me, is taken upon mistaken ground. I am of opinion that this case must be treated exactly as if the plaint had been originally filed in this Court. It appears to me that all which took place in the Hooghly Court was without jurisdiction; the cause of action did not arise within the district of Hooghly, one only of the defendants dwelt there, and no order was passed to allow the suit to be instituted in that Court. This Court has jurisdiction to entertain the suit because the cause of action wholly arose within the local limits of the town of Calcutta; and I think the commencement of the suit dates from the time when the plaint was brought into this Court from the Hooghly Court. All irregularity of proceeding which has occurred is rendered unimportant and of no effect, because the parties have all appeared in this Court prepared to go to trial, and no one has been misled or put under disadvantage by the course which has been pursued.

Then is the law which renders champerty and maintenance illegal in England part of the law which this Court in the exercise of its ordinary original jurisdiction is bound to administer. Viewed in the light in which I have endeavoured to place it I think it is. In other words, I think that the law which forbids and makes void all acts contrary to public policy and subversive of the general interest of society, is in force at least within the Presidency towns. It was part of the law of England in 1726, it is so still, and there is nothing whatever as I conceive in the circumstances of this country to make it inapplicable here; consequently, according to authorities which I have no occasion now to discuss, the late Supreme Court was I imagine bound to treat it as being in force within the limits of its jurisdiction, excepting so far as its operation might be affected by the necessity of applying Hindu or Mahommedan law in cases where a Hindu or Mahommedan respectively were concerned; that is to say it was always in force, because I apprehend this exception can only have regard to the conflict of private rights. Finally, the law of the Supreme Court is the law of the High Court in its Ordinary Original Civil Jurisdiction. Next comes the question; is the contract between Bamasundari and Grose such as to be opposed to the interests of society as it exists in this country? To this I think there can be but one answer. The facts of the suit in which it was made afford ample illustration of the mischief which follows from transactions of this sort. Grose wagered beyond his means and has become insolvent; as Bamasundari assigned to him so he in turn has assigned to others. Bamasundari moreover under a pressure which it is not necessary now to enquire into, has, as I am told, assigned away nearly all the small residue of interest in the suit which remained to her; and thus it happens, that although the long and tedious litigation in this country has resulted in a decree vindicating her rights, and under that decree the large sum of Rs. 2,40,000 has been paid into Court nominally to her credit, yet if these assignments are good in law, she will be left without benefit from either assignment or suit, and persons who are strangers to the record will for insignificant consideration appropriate the whole fruit 6f the Court''s judgment: and even Grose himself bids fair to be a ruined man. This case unfortunately is of no exceptional character. It is but a type of what goes on daily. In every Court of Civil Justice throughout Bengal speculative traffic in law proceedings has assumed the dimensions and respectability of a regular trade. 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 which move at the bidding of persons who are in no way before the Court. The proceedings are carried on not to adjust the rights of suitors seeking equity and justice, but in order that contingencies may be determined according to which the successful player in a great game of speculation will draw the stakes. I feel it impossible to exaggerate the magnitude of the evil. The benami system confined to the tenure of property is bad enough, but when it invades our Courts of Justice and takes away all sincerity and truth from the solemn administration of the law, it becomes destructive of the highest interests of society. I will add that the habitual treatment of legal proceedings as so much merchandize to be bought and sold, at any stage is pregnant with risk to the integrity of those upon whom the Civil Courts are greatly dependent for guidance. I am afraid that there are Vakeels of these Courts who make use of the opportunities afforded to them by their position for buying up and maintaining pending suits, and I am sure there are attorneys whose regard for the interests of their clients is deadened by familiarity with dealings of a champertous character. In short, it seems to me incontestable that the contract which the plaintiff impeaches is vicious to a degree, and offends against the law under which private contracts may be void upon public grounds. I have assumed that such a law was introduced into Calcutta by the Charter of 13th George I. I might perhaps have taken higher ground, for I am disposed to think that there is a power inherent in every Court of Justice which receives its authority from the State to subordinate the interests of private persons to those of the public, and to take care where the two are in conflict that the latter should prevail. The Privy Council in G.F. Fischer vs. Kamala Naicker clearly attributes a power of this kind to the local Courts of this country. Their Lordships there say in reference to the Court of Sudder Adawlut at Madras, it may be admitted that the Court would have the right, perhaps even lie under an obligation, to take cognizance motu proprio of any objection manifestly appearing on the face of the proceeding, which showed that "it was against morality or public policy." If it was not so manifest according to their Lordships, the Court ought not to enquire into it, unless the issue has been distinctly raised between the parties; and in a following passage of the same judgment, the Privy Council, as it seems to me, unmistakeably sanctions the proposition that maintenance which has the qualities attributed to champerty and maintenance by English law, viz., which is "something against good policy and justice is in this country matter of objection to the validity of a transaction such as the Courts ought on the foregoing principle to give effect to when it is properly brought to their notice.

There are several decisions of the late Sudder Court of this Presidency which show that the action of that Court was in conformity with this principle. In Ramgolam Sing v. Keerut Sing 4 Sel. Rep. 12 : 7 I.D. (O.S.) 12 the plaintiff''s suit had been dismissed. To enable him to appeal, he agreed with a stranger that the latter was to advance funds necessary for carrying on the appeal, in consideration of which the stranger was to receive one-half of the estate, if the decree should be in the appellant''s favor. The Court said it could find no precedent to warrant such a proceeding, and observed that it savoured strongly of gambling, and moreover was not a fair transaction, for if a decree passed in favor of the appellant the stranger would obtain a moiety of an estate worth 2 or 3 lacs of rupees, by risking about rupees 2,000 which he would have to pay for costs if the appeal were dismissed. On this ground the appeal was suspended until the agreement was cancelled. No doubt this decision does not amount to a judicial declaration of the principle which I mentioned. There was in truth no decision passed at all, and there were two alternative grounds put forward, upon either of which the agreement was considered to be bad. I think however that the report is important as showing that the Court at that day was prepared to hold a gambling contract between private persons void,. and this could only be upon the ground that it was against public interest. It may also be remarked by the way that the present case falls within the second of lbs two alternatives. In Brijnarain Sing v. Teknarain Sing 6 Sel. Rep. 131 = 7 I.D. (O.S.) 784, it appeared that for the purpose of carrying on a suit to recover property, A obtained money from B, on a bond by which he bound himself in the event of success to transfer a two-anna share of the property to B. He succeeded, and accordingly transferred the two-anna share, Afterwards by fraud he ousted B, and got back into possession of the two-anna share. B sued to recover this from A, but the Sudder Dewanny Adawlut held that the bond was a gambling transaction, and could not be recognized as the foundation of title as between the parties to it. Here the decision is undoubtedly open to question, because on the facts stated it would be difficult to say that there had not been a fair purchase of the two-anna share by B. The transaction does not appear to fall within the vice of champerty. Nevertheless the decision itself is valuable as showing that the Sudder Court considered that gambling transactions, that is transactions opposed to the general interest of society were such as the Court was bound to hold void between the parties themselves. In the Sudder decisions of the same year, is reported a case, Mussamut Zahurunissa Khanum v. Raseek Lal Mitter 6 Sel. Rep. 298 = 7 I.D. (O.S.) 948; there one Zahurunnissa Khanum having instituted a suit in the Provincial Court of Patna to recover the moiety of a certain estate, entered into an agreement with one Ramsundar, whereby after reciting that for the purpose of carrying on the suit and paying all expenses of the same, she had appointed Ramsundar her agent, and had made over to him the necessary papers, she agreed that in the event of obtaining a decree the agent should receive fourteen-sixteenths of whatever should be awarded to her, as his share for the risk and trouble incurred by him; but. should the suit be unsuccessful he should stand the loss of the expenses incurred by him. It will be observed that this contract is substantially the counterpart of the contract made by Bamasundari with Grose. Bamsundar carried on the suit to a successful termination, and his heirs sued Zahurunissa to obtain the fourteen-sixteenths : but the Court said the transaction which gave rise to the plaintiff''s claim was a species of gambling, and the share to be enjoyed by the party who offered to take the risk was out of all proportion to the entire claim of the plaintiff; and on the strength of the second foregoing decision to which I have referred, the Court declared the engagement illegal, and established the point for future guidance. If that guide is still to be followed, the contract of Bamasundari with Grose must undoubtedly be held void. But it is said that the precedents just mentioned have lost their force, and that the Sudder Court and this Court in its appellate jurisdiction have repudiated the authority of that guide. I have been referred to some cases in support of this proposition, but it appears to me that none of them are more than mere dicta of the Judges constituting the Court, in the case of Kishen Lal Bhumik v. Pearisundari S.D.A. (1852) 394, Sir R. Barlow, after mentioning by the way that the law of champerty was now a dead letter in the English Code, declared without giving any reasons whatever that the case of Ramgolam Sing was an erroneous decision. Mr. Jackson in the same case said that although those precedents had been hitherto good and valid, and it was right that the lower Court should follow them; still as the matter had then been brought up generally for consideration before the whole Court, he had no hesitation in declaring his opinion that an arrangement of the nature of champerty is not of itself illegal and void. He went on to say It has been usual to apply the term to arrange-"meats between one of the parties to a suit, and a third person to the '' effect that the third person shall advance to the party the means of carrying on the suit in consideration of which he is to receive a share of the thing litigated. I know of no law against such an arrangement, and there is certainly no reason why it should he declared illegal; such arrangements must stand or fall by the peculiar nature of their conditions. They are liable to question like any others when a suit is brought to enforce or avoid them." It is clear that Mr. Jackson had not inquired very closely into the meaning of the word champerty in English law, and there is nothing in the opinion which he has in these words expressed necessarily inconsistent with the existence of a rule against real champerty in this country. In the next sentence he applies this opinion to the facts of the case in the following words, but it is a very difficult thing to say that A having sued B. the suit shall be dismissed because it appears that A has arranged with C to let him have a share of the thing claimed, in consideration of C advancing money to carry on the suit. The right of A to the thing claimed by him is by no means dependent on the validity of the engagement between A and C." The three other Judges, who made up the Court cleared up all doubt as to the character of the engagement between A and C, by stating that the plaintiff had sold one-half of the property in dispute to a party who, under a document termed an Oomed Kabala, or contingent bill of sale, had advanced funds for the prosecution of the suit, and then refraining from the expression of any opinion adverse to the validity of the before-mentioned precedents they said It does not appear to us to be a necessary or a legitimate consequence from such a ruling that a plaintiff''s suit against another. "who, as the plaintiff alleges, wrongfully withholds his property, must be dismissed whatever its merits, only because the plaintiff has obtained '' funds for carrying it on by means of such an agreement." I see nothing open to question in this opinion, and I think it would certainly have been carrying the law against champerty to an unjustifiable length to hold merely on such facts as these that the plaintiff could not recover in his suit. In the case of Ramnarayan Shah v. Maharajessari Dasi S.D.A. (1S59), 310, a Court of three Judges, while it entirely agreed with the unanimous decision arrived at by the whole Court in the case just quoted, which it understood to "lay down that there is nothing in our Code making it illegal for a party to "receive and another to give funds for the purpose of carrying on a suit on a promise of certain consideration in the form of a share of the property sued for if decreed to the plaintiff; but that contracts of this nature must be decided on their own character and circumstances, and that "the Courts should not recognise and enforce agreements which appear to be exorbitant and to partake of the nature of gambling transactions," went on to state that the facts in the particular case before it did not even constitute champerty in the English sense; at most they exhibited the species of maintenance which consists in the maintaining or assisting by a third party of a plaintiff or defendant with money or otherwise in prosecuting or defending his suit. The Court finally remanded the case to the Court of first instance for re-investigation as to the fairness and honesty of the agreement between the plaintiff and the defendant, and consequently this report does not furnish us with any authoritative decision in point. There is another decision Jadubindhu Odhikaree v. Lokenath Geree Mar. 303 which certainly contains a very strong dictum in favour of the present defendants; but the decision in that case so far as it determined any issue as to champerty was founded on the assent of the parties, and was not coma to by the Court in the exercise of judicial discretion. Moreover, of the two cases quoted to support it, the one given by the Privy Council I have already referred to as an authority the other way, and the remaining one is that which I have just discussed.

I now come to a last alternative. If I am wrong in treating this suit as a suit brought in the ordinary Original Civil Jurisdiction of this Court, and if I am bound to deal with it as if it had been properly instituted in a Mofussil Court, still it seems to me that the result must be the same. The transaction is one which the decision of the Privy Council in the Madras case, and the decision which I have last mentioned in the late Sudder Court of this presidency, show that it cannot be tolerated even by a local Court of Justice in the Mofussil. On the whole, from whatever point of view I look at the contract between Bamasundari and Grose, it seems to me to be void. Then, is the plaintiff entitled to take advantage of this fact and to ask the Court to adjudicate with regard to it? I have already said she is entitled to step in to prevent waste as against Madhusudan''s heirs, and it would be waste if the money which constitutes their inheritance were paid out of Court to Bamasundari''s assignees under a contract which is void. This waste it is true is not yet committed; the plaintiff comes here to prevent it; but it is said there is no overt act towards its commission, and that this Court wilt make no order with regard to dealings with a property which is in the hand or power of a Hindu widow, merely because she is under the disqualifications of a Hindu widow. That is probably true, but I do not think the argument is well founded on the facts. There is no evidence of intention in this case to commit waste; the several defendants in this very suit are stoutly maintaining their rights to this money under the contract which is impeached, and I cannot for a moment doubt that they wilt act upon the contract as soon as they see the coast clear for the exercise of those rights. Finally, I am of opinion that the plaintiff''s suit is not itself affected by the vice of maintenance as has been suggested. The evidence of Baboo Ashutosh Dhur satisfied me that in one sense it is maintained and supported by the Chandra. But I at the same time think that they stand in such a situation with regard to the plaintiff that they may well enough assist her with funds and advice in the prosecution of her right. Although they have been decreed to pay this large sum of money to Bamasundari for her benefit, they are not the less interested in this large fortune being kept in the family, and I see no reason for attributing the part which they have played in this case, and the conduct of the plaintiff in seeking to protect the reversionary heirs'' rights to any improper motive. It is not merely the aiding and succouring of a suitor which constitutes maintenance, and I quite adopt the words of Lord Abinger when he says, If a man were to see a poor person in the street oppressed and abused, "and without the means of obtaining redress for his wrongs, it would require a very strong argument to convince me that that man could be said to be stirring up litigation and strife and to be guilty of maintenance." I thick it is perhaps as well I should say in conclusion that although I feel bound to hold on the facts of this case that the contract which was made by Bamasundari with Grose was of such a character as to be void, yet I do not understand that there is anything in equity which prevents a suitor pending a suit or any other legal proceedings from assigning the whole or part of the subject of litigation. There is nothing to prevent him, as far as I know, from stopping short of an absolute assignment and confining himself to merely mortgaging the property. Such an assignment in the Courts of Equity at home and so undoubtedly here would give the assignee substantial rights. But to assert and realize those rights his proper course of action is to come into Court himself to get himself made a party to any existing suit, or if need be to take independent supplementary proceedings himself for the purpose of maintaining his rights. It is only when the assignment itself contains such ingredients as make it a transaction in opposition to or detrimental to the general interests of society that the Court is bound to declare it void in favor of persons properly entitled to ask for such an adjudication. I think the Court must in this case declare as between the reversionary heirs of Madhusudan and the defendants in this suit that the contract of April 1859 is void, and that the money in Court to the credit of the suit of Bamasundari against the Chandras should be retained until further order of Court. It will be understood that the declaration just made only operates so far as the inheritance is concerned, which the present plaintiff is entitled to protect. Whether or not this inheritance embraces the whole fund in Court, it is not now necessary to determine. That issue will be raised when an application is made for the payment of any of the moneys out of Court.

From this decision the defendants Grose and Hiralal Seal appealed inter alia on the following grounds: (1)--that as regards the appellant Hiralal Seal the Judge had no jurisdiction to hear and determine the suit; (2)--that as regards both the defendants the suit was barred by limitation; (3)--that the assignment dated the 4th day of April 1859, ought not either in law or in fact to have been held absolutely void as being contrary to public policy within the operation of any law regarding champerty and maintenance, and that it was not competent for the plaintiff to raise any such objection; (4)--that the learned Judge was in error in holding that the English law relating to champerty and maintenance had application to this suit; (5)--that the decree and order for injunction ought not under any circumstances to have been made save upon the terms of allowing a fair and equitable remuneration for the labour and trouble of the appellants, and reimbursing them all sums paid away for maintenance and costs together with interest thereon after giving credit for all sums received by them or either of them in respect of such charges; (6)--that even assuming the assignment to the appellant Charles Grose to be invalid as against the reversionary heirs, as regards the corpus of the estate receivable by the widow of Madhusudan Chandra on the death of her husband, it ought to have been held valid as to all the accumulations by way of interest or profits since the death of the said Madhusudan Chandra, and an account directed to be taken, of all such accumulations, so as to distinguish them from the estate which descended to and became vested in the defendant Bamasundari Dasi on her husband''s death for the estate of a Hindu widow; (7)--that under any circumstances the deed ought to have been held valid and binding during the lifetime of Bamasundari Dasi; (8)--that as regards the appellant Hiralal Seal, he ought upon the evidence to have been held unaffected by notice of any such circumstances as would justify the issue of a writ of injunction against him; (9)--and that the suit ought to have been dismissed upon the ground that it was in reality the suit of the defendant Biswanath Chandra, who was at the trial admitted by the plaintiff''s counsel to have bought up all the defendant Bamasundari Dasi''s rights, and was found to be maintaining and prosecuting this suit apparently for his own benefit.

The Advocate General (Mr. Graham with him) for the appellants.-- The same law should apply in this case as if it had not been removed from the mofussil; see the Charter of 1865, section 20; In re Foy 1 T. & B. 219. No acts of the defendant can give jurisdiction to the Court. The late Supreme Court held that though champerty is illegal, Andrews v. Maharaja Sreesh Chandra Rae S.D.A. (1849) 340, an arrangement of that nature is not necessarily illegal or void. Kishen Lal Bhumik v. Peari Sundari S.D.A. (1852) 394. As to the English view of champerty, see Sprye v. Porter 7 Ell. & B. 58. This agreement is not void by reason of any law in force here; Panchcowri Mahytoon v. Kali Charan 9 W.R. 490. It is not necessarily champerty at all; Jug Mohan Lal v. Mussamut Buddun Koer 9 W.R. 243; Phul Chand Lal v. Rughubuns Sahaye 9 W.R. 108.

Mr. Marindin on the same side.--The fraud alleged in this case has not been fully set out in the plaint, as it should have been in a case like this. The charge of fraud should be specific and not general : New Burnswick and Canada Railway Company v. Connybeare 9 H.L.C. 724, per Westbury, L.C.; Wilde v. Gibson 1 H.L.C. 621. An assignment between Hindus of property, the subject-matter of litigation, on conditions which constitute champerty) is not on that ground invalid, Jadubindu Odikaree v. Lokenath Geree Mar. 303; G.F. Fischer vs. Kamala Naicker : the litigation here was not unnecessary. The Court below finds that the plaintiff exercised powers she could not legally exercise, and this litigation was to protect the estate. For the practice of Equity Courts in cases of contracts which appear usurious, see 1 Story''s Equity Jurisprudence, section 696 : an usurious contract is not necessarily void; before it is set aside what is fairly due on it must be paid; Mason v. Gardiner 4 Bro. Ch. C. 435; Ex parte Ship 2 Ves. Sen. 489; Scott v. Nesbit 2 Cox. 183, Fitzroy v. Gwillim I T.R. 153; Proof v. Himes Eq. Cases temp Talbot, 111. In Berny v. Pitt 2 Vernon, 14, a bargain was set aside as being unconscionable, and the same view was taken with regard to agreements made contrary to the Annuities Act Geo. III, c. 26; in Byne v. Vivian 5 Ves. 604; Bromley v. Holland 7 Ves. 3; Hollbrook v. Sharpey 19 Ves. 131; Strachan v. Brander 1 Eden. 303.

Mr. Kennedy (Mr. Branson with him) for the respondent-- Where fraud is alleged and not proved, the Judge must determine whether the facts entitle the plaintiff to relief on a different ground: Hichson v. Lombard 1 L.R. App. 324; Bama Sundari Dasi v. Bama Sundari Dasi 10 W.R. 133. English law and not the law of the mofussil, governs this case; as to what the Privy Council considers champerty, see G.F. Fischer vs. Kamala Naicker . A suit will lie upon an agreement for payment of a sum of money in consideration of assistance in prosecuting or defending a right: Ramnarain Shah v. Maharajessari Dasi S.D.A. (1859) 1310; Kishen Lal Bhumick v. Peari Sundari S.D.A. (1852)394; Ram Golam Sing v. Keerut Sing 4 Sel. Rep. 12 = 6 I.D. (O.S.) 12; Syed Keramut Ali v. Sambhunath Mitra S.D.A. (1847)423; Musst. Zahurunnissa Khanam v. Rusick Lal Mitra 6 Sel. Rep. 298 : 7 I.D. (O.S.) 948; Babco Brijnarain Sing v. Rajah Teknarain Sing 6 Sel. Rep. 131 : 7 I.D. (O.S.) 784; Grell v. Levy 16 C.B. N.S. 73, As to what is considered maintenance and what is not, see Vener''s Abridgment, Title Maintenance," page 169. There is in this agreement that which it was the object of the law to obviate, Sprye v. Reynell 1 De. Gex. M. & G. 660 : 8 Hare, 222; Earle v. Hopwood 9 C.B. N.S. 666. Grose was not a European British subject, and the agreement was executed outside the limits of Calcutta. The law applicable is the English law with modifications according to the circumstances : Dada Honaji v. Babaji Jagushet 2 B.H.C. 36 (38); William Webbe v. William Lester 2 B.H.C. 52 (55); Varden Seth Sam vs. Luckpathy Royjee Lallah . [Peacock, C.J. That principle must be subject to some modification, for the law would be that of the defendant when a suit is brought to enforce a contract.] See the Secy. of State v. Administrator General 1 B.L.R. O.C. 87. Even supposing the law in the mofussil admitted champerty, this contract is governed by English law in its entirety : Strange v. Brennan 2 Cooper, 1. A suit prematurely brought will be dismissed. In suits under Act VIII of 1859, section 15, there must be a present right of action; no declaratory suit can be brought for a future right of action. Against a Hindu widow no injunction will be granted; 6 M.I.A. 433 (Privy Council) , She had no power to alienate in the way she has done. [Peacock, C.J. referred to S. M. Jadumoney Dabi v. Sarodaprosono Mookerjee 1 Boul. 120. A Hindu widow may sever apart from her husband''s estate and leave it by will.] Vyavastha Darpana, 64; 2 Macnaghten''s Hindu law, 258, case 49. This case can be looked at as if it came before the Ordinary Original Civil, and not the Extraordinary Jurisdiction of this Court u/s 13 of the Charter of 1865; see section 4 of Act XXIII of 1861. The objection to the jurisdiction ought to have been taken by the Court by returning the plaint to the plaintiff under Act XXIII of 1861, section 3.

The Advocate-General in reply.--The question of jurisdiction was raised only in the case of Hiralal Seal. Grose was subject to the jurisdiction of Hooghly, and leave should have been obtained u/s 4 to try the suit there. An act of a party is not equivalent to a proceeding of a Court by which be has been brought before it. The assignment of a vested interest, the consideration of the assignment being to act so as to reduce the estate into possession would be void for champerty, but here there is merely a legal or equitable interest, to get possession of which a suit is needed : Prosser v. Edmonds 1 Y.&C., 481. It was not against law or public policy for her to assign her interest in it to another, nor was there anything to prevent Grose and her from being co-plaintiffs if they had thought fit. Hawkin''s Pleas of the Crown, 454, S. M. Soorjeemonee Dasi v. Dinobundu Mullick 9 M.I.A. 123, Rashbehari Lall v. Burmessur Nauth 10 W.R. 30 Musst. Pranputty Koer v. Lalla Futteh Bahadur Singh 2 Hay. 608, Doed Galuckmony Dabi v. Digambur Dey 2 Boul, 193, were also cited.

Peacock, C.J.

Upon the best consideration that I have been able to give to this case, it appears to me that the deed of the 4th April 1859, executed by the defendant Bamasundari Dasi, as far as it relates to the 8-anna share of the property assigned to the defendant Charles Grose and his assignee for his and their own absolute use and benefit;, as a remuneration for managing the suit or suits therein referred to, is not binding upon the plaintiff or her son or upon the persons who, upon the death of Bamasundari, may succeed to the property of her deceased husband Madhusudan Chandra: and I am of opinion that the plaintiff, as the daughter and presumptive reversionary heir of Madhusudan, is entitled to maintain this suit for relief and for the protection of the property. As to the other 8-anna share of the property conveyed by the deed, I think it was well and sufficiently charged as a security for all monies necessarily and properly advanced for carrying on the suits. It may be a question hereafter between Bamasundari and the reversionary heirs, as to what portion of the money advanced is chargeable upon the 8-anna share of the principal charged for those advances, and what portion upon the accumulations or interest of such 8-anna share, but with this we have nothing to do at present. The principal question that we have to determine in this suit is whether the deed is wholly valid or absolutely void as regards the reversionary heirs, or binding upon them to any and what extent.

Two preliminary objections have been made; first, that this Court had no jurisdiction to decide the case against the defendant Hiralal Seal; secondly, that the suit is barred by limitation.

The suit was originally commenced in the Court of the Principal Sudder Ameen of Hooghly, on the 22nd of February 1866, against Bamasundari Dasi, Charles Grose, and Hiralal Seal, as the three principal defendants, the first two defendants being residents of Zilla Hooghly, and Baboo Hiralal Seal being a resident of Calcutta. I quite agree with the learned Judge who tried the case in his remarks as to the plaint. The suit may however be treated substantially as a suit to set aside, as regards the plaintiff and her son, two kabalas, viz., the one above mentioned dated the 4th of April 1859 executed by the said Bamasundari Dasi to the said Charles Grose, to which I shall have presently more particularly to refer; and the other, dated the 14th of November 1860, being an assignment by the defendant Charles Grose to the defendant Hiralal Seal, of the interest which the former took under the aforesaid deed of the 4th of April 1859; also to deprive the said Bamasundari Dasi of the property which, as widow and heiress of her late husband Madhusudan Chandra, she had recovered under a decree of the High Court dated the 8th August 1864, affirmed on appeal on the 8th of January 1866, and to secure it for the benefit of the reversionary heirs of the said Madhusudan Chandra. The plaintiff being a female would not, if she should survive Bamasundari, take an absolute estate as reversionary heir. She had therefore in my opinion a right to sue on behalf of her son as well ad on her own behalf. The son is an infant, and is not, as I understand the case, a party to the suit.

On the 23rd of April 1866 the suit was removed into the High Court, upon the application of the defendants Charles Grose and Hiralal Seal, to be tried by the said Court in the exercise of its Extraordinary Original Civil Jurisdiction, under the provisions of section 13 of the Letters Patent. Upon the argument of this appeal, it was contended on behalf of the defendant Hiralal Seal that, as he resided in Calcutta and the money to which Bamasundari Dasi was entitled under the decree of the High Court was in Calcutta, the Court at Hooghly had no jurisdiction over him either in consequence of his place of residence, or in consequence of the place in which the cause of action accrued.

It appears to me however that the defendant Hiralal Seal, by joining in the application to have the suit removed into the High Court, admitted the jurisdiction of the Court to try the case in the exercise of its Extraordinary Original Civil Jurisdiction, and that he cannot now dispute the jurisdiction. If the suit had not been removed, an order might have been made for the trial of the suit in the Hooghly on some other Court u/s 4, Act XXIII of 1861. This Court must therefore try the case, and apply the same law and equity which ought to have been applied if the suit had been tried in the Court at Hooghly.

As to the question of limitation, it appears to me that the suit was not barred on 22nd February 1866 when the plaint was filed in the Court at Hooghly. Indeed, the first objection with regard to the want of jurisdiction, vis., that the money was in the High Court in Calcutta, shows that according to the defendant''s own contention the cause of action at earliest occurred in 1864, the date of the first decree.

As to the merits of the case, it appears that in 1859 Bamasundari Dasi, being in want of funds for the purpose of carrying on proceedings to recover certain monies which were due to her as the widow and heiress of her deceased husband, applied to the defendant Charles Grose, and executed the deed of the 4th of April 1859. By that deed the defendant Charles Grose agreed, with due diligence and to the best of his ability, to manage a certain suit then intended to be prosecuted by the said Bamasundari for the recovery of her rights, and any other suits or proceedings which might be deemed advisable, and to find all such sums of money as might be necessary to carry on the said suits and proceedings, and to allow the said Bamasundari rupees 16 a month for maintenance, until the execution of the final decree which might be obtained in such proceedings, or until he should have recovered by means of the suits sufficient means for her maintenance and support; and the said Bamasundari, in consideration thereof, assigned to the said defendant Charles Grose all her interest as such widow in the estate and property of her deceased husband and the profits and accumulations thereof, to hold the same, and all benefit and advantages to be derived from the suit then intended to be brought in respect thereof and all other suits or proceedings connected with the said property, upon the terms that the said Charles Grose and his assigns should retain an eight-anna share therein for his or their own absolute use, for his or their trouble and labour in the conduct and management of such suits or proceedings, and that he should out of the residue thereof reimburse himself all monies which he should advance and pay for the maintenance of the said Bamasundari and all sums and expenses which be might advance or incur in conducting and managing the said suit or suits, with interest upon such sums at the rate of 12 per cent. per annum.

It is contended that this deed is void upon the ground of champerty and maintenance, and that it is not binding upon the reversionary heirs, it appears from the recitals in the deed that the surviving brothers of Madhusudan Chandra, the husband of Bamasundari, had upon his death taken possession of the whole of his estate, and had ever since held and enjoyed the same and received the profits and accumulations thereof, and had disputed the right of the said Bamasundari as his widow to any portion of the estate of her late husband; and that she being a widow and unable personally to appear in public and having no knowledge of business, and having been reduced to extreme poverty and distress in consequence of her being unable to procure any money from the estate of her late husband, even for her maintenance, and being unable in consequence of such poverty to institute proceedings to obtain an account of estate of her late husband, had applied to the said Charles Grose to assist her.

It appears to me from the above recital and the evidence in the cause that the deed was not altogether void on the ground of champerty and maintenance.

In the case of G.F. Fischer vs. Kamala Naicker the Lords of the Judicial Committee in referring to a question of champerty say the Court" (referring to the Sudder Court) "seem very properly to have considered that the champerty, or more properly the maintenance, as to which they were enquiring was something which must have the qualities attributed to champerty or maintenance by the English law. It must be something against good policy and justice, something tending to promote "unnecessary litigation, something that in a legal sense is immoral and to the constitution of which a bad motive in the same sense is "necessary."

It appears to me that the assignment of the 8-anna share, as security for the advances and expenses which Grose or his assignees might reasonably and properly make or incur for the maintenance of the said Bamasundari Dasi and for carrying on the necessary proceedings to enforce her rights, with 12 per cent. interest on such advances, was not void, but that it created a charge upon that 8-anna share of the property, which was binding upon the reversionary heirs of Madhusudan to the extent of such advances and expenses.

As regards that part of the deed, however, by which the other 8-anna share of the property to be recovered was assigned to Grose and his assigns for his and their own use as remuneration for their trouble and labour to be bestowed in the conduct and management of the suits, I am of opinion that the deed was not binding upon the reversionary heirs, if not upon the ground of champerty, upon the ground that it was an unconscionable bargain and a speculative, if not gambling contract (see the case of Raja Sahib Prahlad Sen Vs. Baboo Budhu Sing : and other cases, decided in the Privy Council on the 12th March last).

In the present case, the amount recovered by the decree of the 8th August 1864, consisted of the sum of rupees 84,685 principal, with interest thereon at the rate of 10 per cent, per annum from the 25th of October 1847, being the date of the death of the Said Madhusudan Chandra, to the date of realization. One-half of the principal and of the accumulations thereon by way of interest from the date of Madhusudan''s death, would be upwards of a lac and fifteen thousand rupees, and if the deed of April 1859 should be supported as to the 8-anna share assigned to Grose for his absolute use, he or his assigns would be entitled to that amount for their trouble and labour independently of all advances and expenses in the conduct and management of the suit.

Independently however of the fact of the illegality of that part of the contract, it appears to me that there was no necessity for the widow employing Grose or his assigns to manage the suits, and for entering into a contract to pay them such an exorbitant sum for their labour; and that consequently that part of the contract is not binding upon the reversionary heirs. For the above reasons, I am of opinion that upon the authority of the case before the Privy Council to which I have just referred, and the general principles of equity, justice, and good conscience (which is the law which would have been administered at Hooghly), it ought to be declared that so much of the deed of the 4th April 1859, as assigned to the defendant Charles Grose for his own use and benefit an 8-anna share of the property referred to in the deed, is not binding upon the plaintiff or her son, or upon the persons who upon the death of Bamasundari may be entitled to take by inheritance the property of the said Madhusudan Chandra deceased, and that no force or effect as against such heirs can or ought to be given to that part of the deed. This affects only one-half of the property.

As regards the other half the case is very different. The widow under the circumstances had a right to charge the property which might be recovered, with the amount of all such advances and expenses as might be necessarily made or incurred for the purpose of conducting the suits and realizing the estate of her husband, and for her own maintenance in the meantime. If there was a necessity to procure advances for the purpose of realizing the estate of her husband, I think she was justified in charging the corpus of that portion of the estate, as well as the accumulations in respect of it, with the amount of such advances and expenses and a reasonable amount of interest; and I thick that 12 per cent. was not unreasonable looking at the nature of the security. The probability is that no one would have advanced money upon the accumulations above what might accrue during the widow''s lifetime, even if the widow ought to have borrowed upon the security of such accumulations alone, and could have obtained sufficient advances upon such security. If in a case of necessity the widow could charge the accumulations which might accrue after her death with the monies advanced during her lifetime to carry on a suit for the recovery of the principal and such accumulations, there seems to be no reason why she might not also charge the principal. She charged only half of the principal and of the accumulations as a security for the advances, and I am of opinion that there was a legal necessity for such charge and that the deed of April 1859 is binding upon the reversionary heirs, so far as it charges an 8-anna share of the property and accumulations with the advances and expenses to which I have referred.

It appears to me that the contract to that extent was not inequitable nor immoral, that it was not against good policy or justice, that it did not tend to promote unnecessary litigation, and that it was not void upon the ground of champerty or maintenance within the definition in G.F. Fischer vs. Kamala Naicker to which I have already adverted. Indeed, if the advances had not been made, it is probable that the reversionary heirs of Madhusudan would have lost all the benefit of the fund now in Court.

We have nothing to do in this case with the question as to how far the deed of the 4th April 1859 can be supported against the defendant Bamasundari. This suit relates only to the rights and interests of the reversionary heirs, and our decree must be confined to questions involved in the suit.

The only remaining point to be considered is whether the assignment by the widow to Charles Grose for his own use of an 8-anna share as remuneration for conducting the suit, and assignment to him of the other 8-anna share to enable him to reimburse himself the advance and expenses which he might make or incur, has so far endangered the property as to induce this Court to interpose for the purpose of protecting it for the heirs in reversion.

The widow by the deed of the 4th of April 1859 assigned the whole property to the said Charles Grose, one-half for his own absolute use, with power to receive the other half, and thereout in the first place to pay and reimburse himself for the advances and expenses charged upon that half, and she appointed the said Charles Grose and his assigns to be her lawful attorney or attorneys for her and in her name to execute releases, acquaintances, and discharged for all sums of money which might be from time to time realized, and she covenanted not to revoke the said power or to appoint any other attorney or to charge any attorney who might be appointed or employed by the said Charles Grose or his assigns in and about the premises.

I therefore think that a sufficient case has been made out to induce this Court to protect the property now in Court for the benefit of the reversionary heirs, and to prevent the said Charles Grose or his assigns from taking out of Court and appropriating to his or their use the 8-anna share assigned to him for his absolute use, and from taking out of Court the whole of the other 8-anna share for the purpose of reimbursing himself. In the case of 6 M.I.A. 433 (Privy Council) , it was held that a Court of Equity will not interfere, unless it is shown that there is danger from the mode in which the tenant-for-life in possession is dealing with the property, that the mere fact of the tenant for life keeping in hand for about three months part of the corpus for the alleged purpose of an eligible investment does not amount to waste, nor is it in derogation of the rights of those entitled in reversion; and that the title of a Hindu widow to her husband''s property, though a restrictive one, is not in the nature of a trust.

But that was a very different case, for there the money sought to be secured remained in the hands of the widow, to whom as heiress the law entrusted the care and custody of it. In this case however the widow has assigned the property to a third person and made him the custodian of it, and that custodian has been obliged for want of funds to assign it to another.

If the money now in Court be paid to Charles Grose or his assigns to be held by him during the widow''s life, the reversionary heirs will probably on her death be driven to a suit to recover it, and the property may probably pass by assignment, and get into the hands of persons who may not be in a position to satisfy any decree which may hereafter be obtained against them by the reversionary heirs, if they refuse to pay over the money. To compel security in this case is very different from compelling a widow to find security when she, as heiress, is invested by law with the custody of the property which cornea to her by descent from her husband.

Suppose a widow, having a right as heiress of her husband to a large sum of money or of Government Securities in Court, should assign such money or securities to a third person or his representatives or assigns in trust to hold and manage the property during her lifetime, and to pay to her the interest and dividends during her life, and after her death to pay over the principal to the reversionary heirs of her husband, and should appoint the assignee and his assigns her attorneys irrevocably to take the money out of Court. I apprehend the Court upon a suit filed by the reversionary heirs, would not allow the money to be paid out of Court without security to the trustee appointed by the widow, even though it should not be proved that the trustee was insolvent. The Court would not, I think, allow the trustee to have the custody of the money which ought to remain in the custody of the widow.

In this case the 8 anna share assigned to Charles Grose for his own use ought not to be paid out of Court to Grose or his assigns without security, even if the assignment to that extent is binding upon the widow; for the principal which belongs to the heir may be misappropriated, and nothing may be forthcoming upon the death of the widow, and at all events the reversionary heirs may not be able to obtain possession of it without a suit; whereas a widow is, according to the Hindu law, supposed to be subject to the moral control of her relatives. For similar reasons I am of opinion that the other 8-anna share ought not without proper security to be paid out to Charles Grose or his assigns to enable him to reimburse himself the advances and expenses properly charged upon such share, but that it ought to be declared that as regards reversionary heirs that share is well and sufficiently charged with the payment of all such costs and expenses as aforesaid and 12 per cent. interest thereon; and that, without further order of the Court, no larger portion of that share shall be paid out of Court, than the amount which is sufficient to discharge the advances and expenses charged thereon. We cannot in this suit order that even that amount shall be paid out, for we cannot in this suit decide as to the rights and interest of Bamasundari and the other defendants as between themselves. Bamasundari has not appealed, and therefore as far as this suit goes she is willing that the deed shall be set aside, and the whole money remain in Court until further orders, as decreed by the lower Court. We cannot in this suit direct an account to be taken of the advances and expenses.

The decree of the lower Court will be modified by declaring that the said deed of the 4th April 1859, so far as it relates to the 8-anna share of the property therein mentioned, which purports to have been assigned to the said Charles Grose and his assigns upon the terms that he or they should and might retain the same for his or their own absolute use and benefit, is not binding upon the plaintiff or her son or upon the person or persons who, upon the death of the said Bamasundari Dasi, or other determination of her estate, may be entitled to inherit the property of the late Madhusudan Chandra deceased, as his heirs : that no force or effect ought to be given to that deed as against the plaintiff or her son or other such heirs as aforesaid, so far as it relates to the said 8-anna share of the property therein mentioned; that an 8-anna share of the monies decreed by the said decree of the 8th August 1864, being the said share so purporting to have been assigned as aforesaid to the said Charles Grose and his assigns for his and their absolute use and benefit be retained in this Court as a security for the right and interests of such heirs, until the further orders of this Court; and that no larger portion of the other 8-anna share of the said property now in Court than shall be sufficient to satisfy and discharge the advances and expenses charged thereon by the said deed of the 4th of April 1859, shall be paid out of Court to the said Bamasundari Dasi or her attorney or to the said Charles Grose or his assigns. The decree is not to affect any order for the payment of maintenance to the said Bamasundari Dasi, or other order (if any) made by this Court before the decree of the lower Court. The suit of the plaintiff will be dismissed except as to the relief granted by the decree of the lower Court as hereby modified.

The plaintiff in her written statement claims maintenance, but no such claim was made in the plaint. On the contrary, the plaintiff claimed to have the whole of the property made over to her on the ground that Bamasundari was leading an immoral life. The plaintiff is not entitled under this appeal to have a decree for maintenance.

The defendants by their appeal have endeavoured to support the deed of 1859 altogether, but they have failed as to the half of the estate which was made over to the defendant Charles Grose for his own absolute use and benefit. Under these circumstances no costs of this appeal are awarded. I think we ought not to interfere with the decree of the lower Court so far as it relates to the costs incurred in that Court, for the plaintiff has succeeded in the suit as to 8-anna share of the property assigned, and as to the costs awarded against Bamasundari, she has not appealed.

Macpherson, J.

I concur in the proposed decree, but upon grounds which on some points are slightly different from those assigned by the learned Chief Justice.

Bamasundari Dasi, the childless widow of Madhusudan Chandra, was in 1859 engaged in litigation with reference to her husband''s share of the joint family property inherited by him and his brothers from their father Ramtanu. On the 4th of April 1859 she entered into an agreement with the appellant Grose, by which she assigned to him all that she might be entitled to recover and receive from the estate of Ramtanu in right of her deceased husband, together with all interest and accumulations which had accrued or might thereafter accrue thereon, and all benefit and advantage to be had or derived from a suit about to be instituted; and she appointed Grose her attorney to institute and carry on any suit or suits in her name for the purposes of recovering her right and share in this property; and it was agreed that of the property recovered Grose should in the first place retain one moiety for his own absolute use and benefit by way of remuneration and reward for his trouble and labour in the conduct and management of the contemplated suits and proceedings, and as to the remaining moiety that he should repay himself all such sums as he might from time to time have paid for the maintenance of Bamasundari, and also such sums and costs as she might from time to time have advanced or have been put to in carrying on and managing the suits, with interest at 12 per cent., and that be should pay over the residue to Bamasundari herself. Almost immediately after this agreement was entered into, a suit which was then pending was abandoned, and a new suit instituted. In that suit, Bamasundari got a decree for her husband''s share of the joint estate with accumulations to be enjoyed by her as a Hindu widow in the manner prescribed by the Hindu law." Without entering into the details of the litigation, I shall only say that it has been very protracted, and that a large sum amounting to nearly three lacs of rupees are now in Court to the credit of the suit representing the share to which Bamasundari is entitled.

On the 14th November 1860, Grose executed a sub-assignment to Hiralal Seal (who also is an appellant before us) assigning to him all his rights, &c., under the agreement of the 4th April 1859, in consideration of Hiralal Seal advancing money for carrying on the suits, &c.

The litigation has in fact been carried on throughout wholly by Grose and Hiralal Seal.

In February 1866, the plaintiff instituted this present suit in the Court of Zilla Hooghly, but the suit was subsequently removed to this Court under the powers vested in the High Court, by section 13 of the Charter.

The suit was instituted by the plaintiff Amirtamayi Dasi in her own right, and as the mother of her infant son Gowri Charan Kurmokar; and the plaintiff prayed that the rights of Amirtamayi and of her son might be secured, that Bamasundari might be cut off from her right to the property left by her husband, and the property be made over to Amirtamayi, or (in the alternative) that, for the purpose of securing the plaintiff''s future rights, the deeds of April 4th, 1859, and November 14th, 1860, might be set aside as regards Amirtamayi and her son.

Nothing can be more loose and inaccurate than the plaint, impeaching as it does Bamasundari''s right to hold her husband''s estate, on the ground (amongst others) of unchastity,--a ground which was at the hearing wholly abandoned. Strictly speaking, the plaint was so bad that the plaintiff was entitled to no right under it. But whatever the defects which existed in the manner the suit was originally brought before the Court, it appears to me that considering the shape in which the case is now presented to us in appeal, we must dispose of it on its merits. Mr. Justice Phear by whom it was tried was of opinion, after the written statements had been put in and issues fixed, that the substantial issues to be determined (putting aside certain questions of jurisdiction which I shall notice presently) were, firstly, whether the suit was barred by limitation : secondly, whether the alienation to Grose was void by Hindu law as against the reversioners; and thirdly whether the alienation to Grose was absolutely void as savouring of champerty and contrary to public policy. On these issues the learned Judge tried the case, deciding them all in favor of the plaintiff, and directing that the money in Court to the credit of the suit of Bamasundari Dasi should be retained in Court until further order.

Against this decision the defendants Grose and Hiralal Seal have appealed. Their grounds of appeal are common to both, except as regards one point which affects Hiralal Seal only.

The suit, as I have said, was in the first instance instituted in the Zilla Court of Hooghly; and it is admitted that Hiralal Seal was not in any way subject to the jurisdiction of that Court. But Hiralal Seal would have been subject to the jurisdiction, if leave to sue in the Hooghly Court had been obtained from the High Court, or if the suit had been instituted in this Court as a Court of Ordinary Original Civil Jurisdiction: and Mr. Justice Phear being of opinion that all that took place in the Hooghly Court was without jurisdiction, held that the suit must be treated exactly as if the plaint had been originally filed in this Court, and that all irregularity of proceedings which bad occurred was rendered unimportant, because the parties had all appeared in this Court ready to go to trial, and no one had in fact been misled or put be any disadvantage by the course which was pursued. The Advocate General for Hiralal Seal still urges in appeal, that he is not subject to the jurisdiction in this suit. No doubt, if the suit had remained in the Hooghly Court, Hiralal Seal might successfully have pleaded that the Court had no jurisdiction over him. But then the Hooghly Court would have had jurisdiction over him if leave to sue in Hooghly had been obtained u/s 4 of Act XXIII of 1861. It is true that in his written statement, dated the 2nd of April 1866, Hiralal Seal stated that he is not subject to the jurisdiction; but he took no active steps to establish that defence. On the contrary, be allowed (indeed I believe he caused) the suit to be transferred to this Court, which certainly would have had jurisdiction if the suit had been in the first instance instituted here. If Hiralal Seal meant to contest the jurisdiction, he should have had the question decided before the suit was removed to this Court. The suit having been removed here, and all the parties being thus brought before a Court which unquestionably would have had jurisdiction if the suit had been in the first instance instituted in it, it appears to me that the original want of jurisdiction was cured, and no question as to it could any longer be raised.

This disposes of the special ground of appeal taken by Hiralal Seal.

There has been considerable discussion as to the law which is to be applied to this case, the question being whether the law applicable to it is that which would have been applicable had the case remained in the Hooghly Court, or that which would have been applicable had the suit been instituted in this Court as a Court of Ordinary Original Civil Jurisdiction. It is said that because the Hooghly Court never had jurisdiction over the defendant Hiralal Seal, and because the suit ought not to have been instituted there at all, and because the suit ought to have been instituted here, therefore the same law is to be applied to the case which would have been applicable if it had been in the first instance instituted here. I cannot accede to this proposition. Whether the Hooghly Court had jurisdiction or not, the suit was brought into this Court under the power vested in the Court by the 13th section of the Charter, and it was tried by the Court in the exercise, not of its ordinary, hut of its extraordinary, Original Civil Jurisdiction. This being so the case falls under the 20th section of the Charter, which declares that with respect to the law or equity and rule of good conscience to be applied to each case coming before the High Court in the exercise of its Extraordinary Original Civil "Jurisdiction, such law or equity or rule of good conscience shall be the law or equity and rule of good conscience which would have been applied to such case by any local Court having jurisdiction therein." I have no doubt that the law which the Hooghly Court would have been bound to apply, had the suit not been removed, is the law which this Court is bound to apply. We decided to this effect in the case of Doucett v. Wise 2 I. J. 280. The question however is in my opinion of no importance in the present case, because I think that the law applicable to it is the same here and in the Court of Hooghly.

Mr. Justice Phear has held that the agreement between Bamasundari Dasi and Grose is void as against the reversioners, the alienation being one which she, as a childless widow in possession of her husband''s estate, was not justified by Hindu law in making. The facts are, in my opinion, as found by Mr. Justice Phear,--that there was no real inquiry by Grose as to there being any necessity for Bamasundari entering into such an agreement; no attempt by her, or by any one on her behalf, to ascertain or calculate what her rights were, or were worth,-- and that it was a mere speculation of Grose''s by which, in the best result, one half of the whole of Madhusudan''s estate must be lost to his heirs, while the other half remained charged with all the costs and other sums advanced by Grose. An alienation such as this of the estate of her deceased husband by a childless widow is, in my opinion, not valid as against the reversioners, except so far as it may be held merely to create a charge on the estate by way of security for the costs incurred and monies properly advanced with interest, and if the widow is about to cause or permit money appertaining to her husband''s estate which is in Court to be paid over under such an agreement, she is about to commit waste and may be restrained by the reversioners.

I would declare the instrument of the 4th of April 1859 to be bad as against reversioners, so far as it is an assignment of an 8-anna share of the estate to Grose absolutely for his own use and benefit, and so far also as it does more as regards the remaining 8-anna share than create a charge upon it for the payment of all costs properly incurred, and monies properly paid by way of maintenance or otherwise, for Bamasundari''s use by Grose, with interest upon such costs and advances at 12 per cent, This declaration will in fact be in accordance with the views of the plaintiff''s advisers; for I understood her counsel Mr. Kennedy to say that he did not object to an 8-anna share standing as a security for costs and advances.

I do not doubt that Bamasundari might properly have carried on her suit by means of advances from Grose, and have given him a portion of the estate recovered as security for the repayment of the monies advanced by him; so, perhaps, she might have raised the necessary funds by absolutely assigning to Grose a portion of what might be recovered. But she could have done this, so as to bind the reversioner, only if the transaction was a fair and bona fide and reasonable transaction both on her part and on Grose''s, entered into after due consideration of Bamasundari''s position as representing her husband''s estate. In no event can it be right or in accordance with Hindu law, for a widow to assign her whole position as representing her husband, and to assign her whole estate to a stranger and appoint him her irrevocable attorney for the purposes of realizing and dealing with the estate, subject only to the repayment by him to her of such residue of one moiety as he should consider to be payable to her after he shall have deducted out of that moiety all his own costs and

I think that the case clearly falls within the ordinary rule applicable to alienations made by childless Hindu widows; that the assignment to Grose is not good as against the reversioners, otherwise than as a mere security for costs paid and advances properly made with interest; and therefore that the reversioner has a right to sue to restrain waste.

It is contended for the appellants that if the plaintiff Amirtamayi be the reversioner, her interest in the estate of Madhusudan extends no further than the corpus of that estate. There is no doubt that the income and profits arising from the husband''s estate may be used by the widow at her discretion, and the reversioner cannot interfere with her in the exercise of that discretion. But accumulations are not the same as income, and in no case that I am aware of has it been decided that accumulations can be dealt with by her as income or otherwise than as the corpus may be dealt with. I confess that I was under the impression that the late Supreme Court, in disposing of a matter, in the goods of Harendranarayan Ghose; Kailasnath Ghose v. Biswanath Biswas The case is thus reported in the Englishman of the 2nd July, 1853, had held that a widow might assign or otherwise dispose of accumulations. I have however referred to the only published report of the case which I can find, and it appears that the Court while saying that the widow might dispose of the income at her pleasure, drew a distinction between income and accumulations, and did not decide that she could so dispose of accumulations. Sir Lawrence Peel said, the Hindu authorities say that a widow ought to live a chaste and retired life; and her duty "may be to spend no more than is necessary for her support in a state of seclusion. But if instead of living strictly as she should, she lives freely.