1. It becomes necessary to state a few facts in order to make the questions of law raised intelligible. The suit may be shortly described as one brought by the reversioners of a deceased Hindu. One Brahmayya(senior) died somewhere about the year 1864 and was succeeded by his widow Subbamma, who died on 27th September, 1914, that is, about 50 years later. On her death the estate vested in two persons named Ramayya and Brahmayya (junior), sons of two brothers. After Ramayya's death his sons (plaintiffs 1 to 5) along with Brahmayya (junior) executed on 21st November, 1916, the document Ex. F, in favour of the 6th plaintiff, a stranger. On 27th September, 1926, that is, on the last day of the period provided by the law of limitation, the present suit was brought. The plaint, which purports to have been filed by plaintiffs 1 to 6, was in fact signed and verified only by the sixth plaintiff, who described himself as the authorised agent under Ex. F of plaintiffs 1 to 5. It must be mentioned that although the plaint contains the statement that the correct court-fee of Rs. 80 odd was paid the amount of court-fee actually paid was Re. 1. The plaint was then returned for various defects, two of which only concern us here:
(i) want of proof that the sixth plaintiff was the duly authorised agent of plaintiffs 1 to 5;
(ii) making good the deficient court-fee.
2. By way of curing the first defect, Ex. F was produced but the Court refused to recognise it as containing sufficient authorisation. Then on 27th October, 1926, the plaintiffs 1, 2, 4 and 5 filed a verification and on their behalf a pleader entered appearance. So far as the third plaintiff was concerned, nothing was done by him or on his behalf., As to the second defect, there was default made in the payment of the deficit court-fee within the time limited. Two further extensions were given and on 14th October, 1926, the deficiency of Rs. 80 was made good. There is one other fact which must be mentioned. Brahmayya (junior) who, as stated above, was among those that executed Ex. F, having died previous to the suit, his sons were impleaded as defendants 6 and 7. The lower appellate Court, agreeing with the trial Court, has passed a decree in favour of the plaintiffs and defendants 6 and 7. The second defendant, who has been in possession of the estate, has filed the present appeal. He is the grandson of Subbamma's sister's daughter. On the merits he put forward a certain defence, which the lower Courts have refused to go into, on the ground that the plea was raised too late. Whether in doing so they have acted rightly or not, is a matter I need not consider, in the view I have taken as to the question of law raised.
3. The first contention advanced for the appellant is that the trial Court acted wrongly in extending the time for making good the deficiency in the court-fee. Where a plaint is written upon paper insufficiently stamped, the Court is bound to give the plaintiff time to make up the deficit; only when he fails to comply with the order, the Courtcan reject the plaint; that the plaint is presented on the last day of the period of limitation makes no difference, that is, theeffect of Order 7, Rule 11, Civil Procedure Code. Again whether the payment of insufficient fee was by design or due to inadvertence, the Court is bound by the mandatory terms of it, to give effect to this provision. There is some inconsistency between this rule and Section 28 of the Court Fees Act, as the latter provision does not extend to deliberate payment of insufficient fee. But the rule generalibus specialia derogant, must, I take it, apply as the section in the Court-Fees Act refers to documents generally, whereas the rule in the Code applies to plaints alone. This being the law, the Court's action in giving the plaintiff time originally cannot be questioned. But once the time was fixed, it was no longer open to the plaintiff to demand as a matter of right, that the time should be extended. The power to grant extension vests in the Court either under Section 148 or 149, Civil Procedure Code. Under either of those sections, the question is one of the Court's discretion and not the plaintiff's right. Section 149, it may be noted, expresssly provides for a defective document being retrospectively validated. It is obvious that the Court must exercise its discretion, not capriciously, but judicially and reasonably. There is nothing on the record to show that the Court in granting the extension, applied its mind to the question at all. The suit was filed on the last day of the 12 years period, by one who was gambling in litigation. Then it is suggested that this plea was not taken in the Courts below. How are defendants to blame when they were not apprised of the order made behind their back? However, I do not propose to rest my judgment on this ground, as giving effect to the maxim omnia praesumuntur rite esse acta, I should presume that there was a real exercise of discretion (see Raghunandan Sahay v. Ram Sunder Prasad (1924) I.L.R. 4 Pat. 190, Gaya Loan Office, Ltd. v. Awadh Behari Lal (1916) 1 Pat L.J. 420, Ram Sahay Ram Pande v. Kumar Lachmi Narayan Singh (1917) 3 Pat L.J. 74, Suraj Pal v. Utim Pandey (1920) 56 I.C. 47 Baijnath Prasad v. Umeshwar Singh A.I.R. Pat. (1937) 550 (S.B.), Priyanath v. Meajan (1915) 24 C.L.J. 88 and Basavayya v. V enkatappayya (1926) 51 M.L.J. 90.
4. This shows how necessary it is to provide by a rule (made by the High Court) that where the order has the effect of over-riding limitation, the Court shall not make it without notice to the party to be adversely affected by it. In this case if is by a sort of fiction that the Court can be held to have exercised its discretion, for, the order that has been made, is of the routine type. If such a rule is made, it will incidentally have the effect of making the Court apply its judicial mind to the matter arising before it.
5. The more vital question is the one arising from Ex. F. In the first place, I am not prepared to agree with the appellant's earned Counsel that it cannot be construed as a power-of-attorney. It provides for the 6th plaintiff filing the suit himself and conducting it, and for the properties, when recovered, being divided, in two equal moieties between him and the reversioners. I see no reason why a narrow meaning should be put upon this document. But there is a far more serious objection, which I think ought to prevail. The power-of attorney was executed by six persons, of whom Brahmayya (junior) was one, he being entitled to one-half of the property; but before the power could be acted upon, the latter died. Under Section 201 of the Contract Act, an agency is terminated by the death of the principal. The question that then arises is, where the agency was created by more than one principal, does the death of one or some of them terminate the agency? It has been held in several English cases that the death of one or more of the principals revokes the agent's authority, although it has been explained in a decision of the Calcutta High Court, Re Sital Prosad (1916) 21 C.W.N. 620, that the rule is not one of universal application, the question being one of intention to be determined upon the terms of the document and from the surrounding circumstances. In Gee v. Lane (1812) 15 East. 592 : 104 E.R. 967 and Raw v. Alderson (1817) 7 Taunt. 453 : 129 E.R. 182, it was held that a joint warrant of attorney given to enter judgment "against us" does not authorise the entering up of judgment, on the death of one, against the survivor only. In Tasker v. Shephard (1861) 6 H. & N. 575 : 158 E.R. 237, where the question was as to the effect of the death of a member of a partnership firm, the Court held that the contract was subject to the condition that it was to be in force so long as all the parties lived. In Bowstead's book, it is stated that the agency is determined by the death of any one of the partners before the expiration of the period fixed. (Law of Agency, 7th Ed., 1924.) In the Calcutta case, already referred to, the property belonged to a joint Hindu family and the intention of the joint power-of-attorney appearing to be to facilitate joint loans by the mortgage of the joint estate, it was held that the death of one member did not revoke the agency. Re Sital Prosad : Badrinarain Agarwalla v. Raja Brijnarain Roy (1916) 21 C.W.N. 620. But the facts here are entirely different. Brahmayya (junior) had a distinct half right in the property and I am unable to deduce from the terms of Ex. F that it was intended to be in force even in the event of his death.
6. But it is contended that this is an agency coupled with interest and is saved by Section 202 of the Contract Act. This argument cannot prevail. Ex. F contemplates the agent incurring costs in future for the filing and the conducting of the suit. The principle applies only to cases, where authority is given for the purpose of being a security or a part of the security, and not to cases where the interest of the donee arises afterwards and incidentally; in such cases there is no authority coupled with an interest, but an independent authority, and an interest subsequently arising Smart v. Sandars (1848) 5 C.B. 895 : 136 E.R. 1132. Illustration (b) to the section refers to a consignment made after the factor's advance and with an express request by the principal to repay himself out of the price of the goods (see Pollock and Mulla, Commentaries, under Section 202 and the Indian Cases cited there). I am therefore of the opinion that the 6th plaintiff's agency had become revoked before the date of the suit and that the plaint that he filed is thus an invalid and ineffectual document. That would be sufficient to dispose of the appeal, as in this view the suit fails.
7. Another contention however that has been raised, may be noticed. I may at once state that the argument put forward in the lower Courts, that the sixth plaintiff cannot maintain the suit as the agreement is champertous, cannot prevail. Granting that this transaction is an unfair and unconscionable bargain, that is a question between the assignors and the assignee, and so long as the deed stands, it is no concern of the defendants that the assignors may have a grievance against the sixth plaintiff Lal Achat Ram v. Raja Kasim Husain Khan (1905) 15 M.L.J. 197 : L.R. 32 I.A. 113 : I.L.R. 27 All. 271 (P.C.) and Raja Rai Bhagwat Dayal Singh v. Debi Dayal Sahu (1908) 18 M.L.J. 100 : L.R. 35 I.A. : 48 I.L.R. 35 Cal. 420 (P.C.). But the more important question is, whether what was assigned was a mere right to sue, in which case it amounts to gambling in litigation [see Section 6(d), Transfer of Property Act] or whether there was a present transfer of a moiety of the reversioners' interest. On a reading of the document, I am clearly satisfied that it does not create an immediate transfer, but contemplates the coming into existence of a future deed which is to effect the transfer. The document says:
If we should come out successful finally in the High Court, we both parties should take in equal shares and should execute documents necessary therefor.
8. In the next sentence the consideration is described to be the agreeing to give a moiety of the estate (the Court translation in this particular is wrong). On this ground again, the plaint, having been filed in time by the sixth plaintiff alone, cannot avail the plaintiffs.
9. In the result, the decree of the lower appellate Court is set aside and the suit is dismissed with costs throughout.
10. Leave to appeal is refused.