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3. I have heard the submissions of Mr.Ranjith Thampan, learned counsel for the petitioners in C.R.P.No.948 of 2002, Sri.N.Subramaniam, counsel for Joy Kuriakose who was the petitioner in C.R.P.No.836 of 2002 and 874 of 2002 and also Sri.V.K.Isaac, learned counsel for Ayyappankutty. I have also heard the submissions of Sri.Shyson P.Manguzha, learned Government Pleader on behalf of the State.

4. Sri.Ranjith Thampan would submit that E.A.605 of 1998 filed by Ayyappankutty arraying late Dr.Babu as the party-respondent had become abated as against the legal heirs of Dr.Babu due to deliberate non-impleadment of them. Yet the execution court has proceeded to allow E.A.605 of 1998 with Dr.Babu on the array of parties, a circumstance which vitiates the order in that E.A. The learned counsel submitted that Ayyappankutty did not have a plea of equitable assignment of all the rights of Dr.Babu in the decree to him. Nevertheless, the execution court went beyond the scope of its jurisdiction to uphold such a plea on the basis of certain inapposite judicial precedents which were cited before him on behalf of Ayyappankutty. The power of attorney Ext.B1 was revoked by Dr.Babu himself during his lifetime and at any rate the power of attorney could not survive Dr.Babu who passed away during the pendency of the E.P. filed by him. No agency can survive the principal, submitted the learned counsel. Description of a power of attorney as irrevocable will not render the power of attorney irrevocable unless the power conferred is coupled with any interest which the agent had in the subject-matter. The entire transaction between the parties is void being violative of Section 6(e) of the Transfer of Property Act and also Section 53 of the Contract Act. The total compensation is more than Rs.53 lakhs and the transaction discernible from Exts.B1 and B2 relied on by Ayyappan is an agreement to share the compensation in the ratio Rs.9 lakhs: the entire balance, between the decree-holder Dr.Babu and Ayyappankutty, the agent. The agreement is champertous and hence illegal. The agreement at any rate is unconscionable and unenforceable due to that reason. Ext.B1 power of attorney and Ext.B2 agreement relied on by Ayyappankutty and approved by the court are not admissible in evidence in view of Section 17 of the Registration Act read with Section 49 of the same Act. Even according to the testimony of Ayyappankutty, he was a proxi for the Presiding Officer concerned. His testimony was that he does not know English, that he and the Presiding Officer concerned are fellow- villagers, that the Presiding Officer concerned was instrumental for execution of Exts.B1 and B2 in his favour and that corrections have been made in Ext.B1 power of attorney by the Presiding Officer under his own handwriting. These admissions coming from the mouth of Ayyappankutty himself and the circumstance noticeable from the amterials available in the records relating to the previous execution petitions as well as the originals of the records of the land acquisition reference case will establish to the very hilt that Exts.B1 and B2 were byproducts of sheer abuse of legal process and perpetration of fraud not only on the petitioner but also on the judicial system itself. Any claim based on Exts.B1 and B2 was to be repelled on the short score that out of the per se illegal transaction, legitimate claims can never originate. Sri.Renjith in his submissions drew my attention to Section 6(e) of the Transfer of Property Act, 1882 and 201 of the Indian Contract Act, 1872 as well as to Sections 17 and 49 of the Registration Act, 1908. The learned counsel would endeavour to distinguish the decisions relied on by the court below on the facts which obtain in this case and would refer to all those decisions, referring in particular to Joseph George v. Cochin Sanitary Wares (1991 (2) KLT 447). Mr.Ranjith also referred to the judgment of the Bombay High Court in In re K.L.Gauba (AIR 1954 Bombay 478) and the judgments in Kamrunnisa v. Pramod Kumar Gupta (AIR 1997 Madhya Pradesh 106) and N.Venkataswami v. K.Nagi Reddy (AIR 1962 Andhra Pradesh 457). Though English Law of Champerty and Maintenance may not as such be applicable in India, the present one being a case involving an advocate and a judicial officer, Ext.B2 agreement has to be found illegal and hence liable to be ignored, submitted counsel.

The word "champerty" has its origin in the French word "champs parti" meaning "split field". Black's Law Dictionary would define champerty as an agreement between an officious inter-meddler in a law suit and a litigant by which the intermeddler helps pursue the litigant's claim as consideration for receiving part of any judgment proceeds. To be more specific, champerty and maintenance means an agreement between the claimant in a litigation and a party unrelated to the litigation under which the unrelated party agrees to maintain and support the litigation on condition that the fruits of the litigation will be shared between them. In England, champerty and champertous agreement are illegal. But in India, an agreement between a party to the litigation and between another person who is not a party to the litigation to share fruits of the litigation does not become illegal for the sole reason that the agreement is champertous. At the same time, if it is revealed that the object of the agreement is illegal or if the conditions of the agreement are violative of the principles of equity, justice and good conscience or the agreement discloses an unconscionable bargain, then, the courts in India will certainly find the champertous agreement to be illegal and refuse to enforce the same.

A Division Bench of this Court consisting of M.S.Menon, J. (as His Lordship then was) and T.K.Joseph, J. considered the question as to whether Champerty agreements are illegal in India and also whether rules of English law against Champerty and maintenance apply in India in considerable detail. Following the judgment of the Supreme Court in AIR 1954 S.C. 557 their Lordships held that if no Advocates are involved in the agreement, the agreement does not become illegal or enforcible in India for the only reason that the same is Champerty. The agreement which was considered by the Supreme Court in AIR 1954 S.C. 557 was an agreement between an Advocate and a litigating claimant under which it was agreed that the entire litigation will be financed and conducted by the Advocate without claiming any charges in advance but once the fruits of the litigation are realised, the Advocate will be given 50% of the same. The Supreme Court did not enforce the agreement noticing that an advocate was involved. While refusing to enforce that agreement that the agreement was between the claimant and the somebody who was not an Advocate, then the agreement would have been upheld and enforced. The Champerty agreement which was considered by the Division Bench consisting of M.S.Menon and T.K.Moseph, JJ. (Damodar Kilikar & Others v. Oosman Abdul Gani [1961 KLJ 356] ) did not have the junction of any Advocate. Noticing that fact and finding that the agreement was not immoral or opposed to public policy and that the terms of the agreement are not unjust or shocking to the conscience, the Division Bench upheld the agreement. But the distinction between the law in England and the Indian law regarding Champerty agreements is that while in England Champerty agreements, whoever the parties to the same are, are per se illegal in India such agreements become per se illegal only if Advocates are involved. It was submitted incidentally before me by all the counsel appearing in this case that a practice of claimants and Advocates entering into agreements of Champerty and maintenance is invoked in several parts of the State regarding conduct of compensation claims such as M.A.C.T.Compensation, Land Acquisition Compensation and Workmen's Compensation. However, having regard to the law in India relating to the Champerty agreements, any agreement between a lawyer and a client for payment of the fruits of an award or decree or payment of a portion of the fruits of an award or a decree as consideration for the lawyers financing the litigation or conducting the litigation by way of Advocate fees or other charges will be found illegal and will not be enforced in any court. At the same time it should be pointed out that there is nothing illegal in an Advocate entering into an agreement with the client for payment of Advocate fees which is not dependent or contingent on the result of the litigation, even if the fees so agreed upon is in excess of the fees prescribed under the Rules relating to payment of Advocate Fees. In other words, there is no illegality in the Advocate and the party agreeing to pay or receive a fees higher or lesser than the fees prescribed by the Advocate Fees Rules. The relevance of Advocate Fees Rules, 1969 is only that the same provides the maximum fee recoverable from the opposite side as part of the case in the event of the claim being upheld.

I am obliged to refer now to a very serious argument which was addressed before me by Adv.Mr.Ranjith Thampan. Mr.Ranjith Thampan submitted that Ext.B2 is per se a Champerty agreement and that though it does not have the junction or involvement of an Advocate, the same is vitiated due to involvement of a judicial official. Mr.Ranjith Thampan would highlight before me various aspects which according to the learned counsel establishes the involvement of the officer who presided over the land acquisition reference court at the time when the decree was passed by this court. It is not necessary for me to find out one way or other as to whether Exts.B1 and B2 has involvement of any judicial officer since I have already found Exts.B1 and B2 to be illegal on other reasons.