ance, are: 1872 BYSAK v. MAHENDRA The author states an exception to what has been said by him respecting the succession of the son, the widow, DWARKANATH and other heirs, as well as the re-united parcener, an impotent person, an outcast and his issue, one lame, a madman, an idiot, NAth Bysak. a blind man, and a person afflicted with an incurable disease, as well as others (similarly disqualified) must be maintained, excluding them however from participation," being the same text as is in the Dayabhaga. I may also notice that, in Elberling on Inheritance, s. 151, it is said:" As succession takes place in consideration of the benefit conferred on the deceased by the funeral offerings, those who cannot, either for a general or special cause, or those who will not perform the ceremonies, are necessarily excluded from becoming heirs ;" and he refers to s. 189, where it is said:" The being impotent, or born blind and deaf, or having lost a sense or a limb, or being a madman, an idiot, or dumb, because these defects are considered as a punishment for crimes committed in a former state." The texts speak of incurable disease, but madness is a separate head of disqualification to which incurability is not attached. They do not support the proposition that a person must, as Macpherson, J., says, be absolutely incurably insane. That goes beyond what the texts warrant. The evidence in the case with regard to the state of mind of Mahendranath Bysak was the deposition of Dr. Payne, who said :-(his Lordship read Dr. Payne's evidence and proceeded.) It appears to us that this evidence shows a state of madness for a long period of time, and certainly, if not without an absolute possibility of cure, without a probability of it. It is not necessary to show by clear and positive evidence the absolute impossibility of a cure. There is no authority for that either in the texts or decisions. According to Dr. Payne's evidence, this person might well be described as a madman; and in 1869, when the succession fell in, he was certainly a madman, and was not at that time in a condition to offer the funeral oblations, which is given as the reason why such a person should be excluded from inheritance. For that reason we think the decree of the learned Judge cannot stand, and that part of it which relates to the share of Mahendranath Bysak BYSAK V. MAHENDRA 1872 must be set aside. The texts which exclude a madman from DWARKANATH inheritance declare that he is entitled to have maintenance; and this was not questioned in the argument before us. It must NATH BYSAK. therefore be referred to one of the Judges of this Court (unless the parties can agree on it, which they will probably be able to do) to ascertain what is a proper sum to be allowed for Mahendranath Bysak's maintenance from his share of the property. The parties will respectively bear their own costs of this appeal to be taxed as between attorney and client on scale No. 2. Appeal allowed. Attorneys for the appellants: Messrs. Gray & Sen. Attorneys for the respondent: Messrs. Swinhoe, Law, & Co. 1872 Aug. 29. Before Mr. Justice Macpherson. S. M. PRANKUMARI DASI AND ANOTHER v. ABINASH CHANDRA Costs, Payment of Plaintiff's, by Stranger to suit. The Court will not order a person not on the record to pay the costs decreed against the defendant, when the latter is a real and not a sham defendant and himself did the wrongful act on which the suit was based, and has an interest in the subject-matter of the suit, and when the plaintiff knew before the trial the circumstances under which he afterwards sought to make such third person responsible for the costs, and might have added him as a defendant on the record (1). ON 5th August 1872 the Advocate-General (offg.) obtained a rule calling on Krishnalal Gosain to show cause why he should not pay to the plaintiffs their costs of this suit payable to them by the defendant Abinash Chandra Mookerjee under the decree in the suit. The rule was obtained on the decree and on affidavits of the defendant Abinash Chandra Mookerjee and of Mr. Carruthers, one of the attorneys for the plaintiffs. It appeared from these affidavits that the suit had been instituted to obtain possession of a house and premises No. 12, Old Post Office Street, (1) See Srimati Bamasundari Dasi v. Ramnarayan Mitter, 8 B. L. R. (App.), 65, 1872 KUMARI DASI v. ABINASH CHANDRA MOOKERJEE. Calcutta, of which the defendant, on the 8th January 1872, had forcibly dispossessed the plaintiffs, and for damages. The plaint S. M. PRANwas admitted on the 27th January 1872. At the time of the dispossession complained of, the defendant and Krishnalal Gosain carried on business in partnership as printers, under the style of the Bengal Printing Company, and after such dispossession, the plant and stock of the Bengal Printing Company were removed into the premises of which the plaintiffs sought to recover possession. On the 19th February Krishnalal Gosain advertized that he was the sole proprietor of the Bengal Printing Company, No. 12, Old Post Office Street, and on the following day the plaintiffs' attorneys, acting under instructions from their clients, gave Krishnalal Gosain notice that, unless he would forthwith deliver up possession of the said premises, they would apply to add him as a defendant to the suit. It appeared, however, that the threat was not carried into execution, and Krishnalal Gosain was never added as a defendant. On the 24th February Abinash Chandra Mookerjee and Krishnalal Gosain sued the plaintiffs for specific performance of an agreement to grant them a lease of the house No. 12, Old Post Office Street, alleging in their plaint that, in pursuance of permission granted to them by the plaintiffs' agent, they had, on the 8th January 1872, taken peaceable possession of, and had removed their plant and stock-in-trade into the said premises. The suit for specific performance was dismissed on the 12th June 1872 with costs, the plaintiffs therein not appearing. The plaintiffs in this suit obtained a decree on the 5th June 1872 for possession of the premises, and for Rs. 2,000 damages, together with costs of suit on scale No. 2, which costs were taxed at Rs. 2,235-1. Neither the costs, nor the damages, nor any part thereof, had been paid by the defendant Abinash Chandra Mookerjee ; and Mr. Carruthers in his affidavit stated that he had been informed by Mr. C. F. Pittar, the defendant's attorney, that the defendant was a man of very limited means, and wholly unable to pay the costs or the damages awarded, and that he had no interest either in this suit or in the suit against the plaintiffs for specific performance, and that such suits were defended and instituted for the sole benefit 1872 KUMARI DASI v. ABINASH MOOKERJEE. of Krishnalal Gosain. The affidavit referred to the deposition of S. M. PRAN- the defendant at the hearing of the suit, in which the defendant stated that the printing-press had been bought with funds supplied CHANDRA by Krishnalal Gosain, who was the monied partner of the firm; that he, the defendant, took possession of the premises No. 12, Old Post Office Street, with Krishnalal Gosain's knowledge; that he had ceased to be a partner in the Bengal Printing Company on the 5th April 1872, from which date he had received no profits therefrom; that he had no interest in the suit; and that the costs were being paid by Krishnalal Gosain. The defendant Abinash Chandra Mookerjee supported these statements by an affidavit in which he alleged that Krishnalal Gosain had agreed to pay the costs of this suit and of the suit for specific performance, and that the latter suit was instituted, and both suits were carried on, for Krishnalal Gosain's sole benefit. In an affidavit filed in answer to those upon which the rule had been obtained, Krishnalal Gosain stated that Abinash Chandra Mookerjee was his man aging partner, but that he had never authorized him to take forcible possession of the plaintiffs premises, nor was he aware that Abinash Chandra Mookerjee had done so until after the institution of the plaintiffs' suit; that he had merely learnt from Abinash Chandra Mookerjee that there was a house to let in Old Post Office Street, and had given his assent to renting it. He denied that he had ever agreed to pay all the costs incurred in the conduct of this suit, or of the suit for specific performance, or that such suits were for his sole benefit. Mr. Kennedy, on behalf of Krishnalal Gosain, showed cause. Up to the present time there has been no case showing that the Court has power to order a stranger having a substantial interest in a suit to pay the costs due by the defendant, although there is a note by Mr. Bourke in his report of the case of S. M. Bammasundry Dossee v. Anundololl Doss (1) to the effect that such a course might, under certain circumstances, be adopted. In order to succeed, the plaintiffs must show something in the nature of barratry and maintenance. See per Lord Abinger in (1) Bourke, 44. 1872 KUMARI DASI v. Hayward v. Giffard (1). This was the principle adopted by Phear, J., in Jugessur Coomar v. Prossono Coomar Ghose (2) S. M. PRANand in S. M. Bammasundry Dossee v. Anundololl Doss (3). The plaintiffs ought to have made Krishnalal Gosain a party defendant-Berkeley v. Dimery (4) and Evans v. Rees (5). The Advocate-General (offg.) in support of the rule. The liability of Krishnalal Gosain depends on whether he consented to the wrongful act, or afterwards so gave his assent to it as to show that he concurred with Abinash Chandra MookerjeePetrie v. Lamont (6). The technical rule established by the English cases is only a portion of a broad principle; the real point to be looked at is who was substantially the defendantDoe d. Marsters v. Gray (7). In this case it was clearly established that Krishnalal Gosain paid for the defence, and was the real defendant. Cur. adv. vult. MACPHERSON, J.-It appears to me that this is not a case in which I ought to order that the damages and costs, or the costs, payable by the defendant Abinash Chandra Mookerjee, should be paid by Krishnalal Gosain. The case is by no means one of those contemplated by Phear, J., in the remarks made by him in his judgment in the case of S. M. Bammasundry Dossee v. Anundololl Doss (8); for this is not a case in which, in the course of the trial itself, it for the first time turned out that the party before the Court was a man of straw, and merely the puppet of Krishnalal Gosain, who was actually pulling the strings of litigation. In the first place, the party before the Court is not a man of straw, as far as I can see, whether he is or is not now able to pay the amount decreed. Abinash Chandra Mookerjee was in no sense a sham defendant, he was a real substantial defendant, who had himself done the wrongful act on which the suit was based, and who had a six-anna interest in the whole matter, which was really the subject of the suit. (1) 4 M. &, W., 194. (3) Bourke, 44. (4) 10 B. & C. 113; in note. (5) 2 Q. B., 339. (6) 1 Car. & Marsh., 93. (7) 10 B. & C., 615. (8) Bourke, 44, at p. 46 ABINASH CHANDRA MOOKERJEE, |