JUDGMENT
Janarthanam, J.
1. The first defendant in Original Suit No. 384 of 1977 on the file of the learned District Munsif, Tenkasi is the appellant in the Second Appeal.
2. That suit was filed by the first respondent-plaintiff for the reliefs of declaration of her right to be in possession of the property in Schedule I of the plaint and for permanent injunction restraining her husband the second respondent-second defendant and the appellant-first defendant from interfering with her peaceful possession and enjoyment of the same or in the alternative for possession.
3. In pith and substance, the case of the plaintiff is as follows: — She married the second defendant, after the death of his first wife. During the subsistence of her marriage, the second defendant also married one Mariammal in 1963. Consequently, she launched a prosecution against her husband second defendant before the Sub-Divisional Judicial Magistrate, Shencottah and the case had been taken on file in C.C. No. 165/63. The mediators in the village advised them to have the matter compounded and in view thereof, the second defendant executed a settlement deed, Ex. A1 in respect of the properties mentioned in Schedule II in the plaint on 26-12-1963. Ever since then, she had been in possession and enjoyment of those properties along with her husband-second defendant. The third item in Schedule II of the properties shown as the property in Schedule 1 had been alienated by the second defendant in favour of the first defendant on 15-5-1971 under Ex. A2, when she was away in her parents’ house due to misunderstanding between the spouses. The second defendant has no right to alienate Schedule I property and consequently the alleged sale in favour of the first defendant is not valid in law.
4. The second defendant remained exparte and the first defendant alone contested the suit by filing a written statement contending as follows. The settlement deed Ex. Al is null and void under Section 23 of the Indian Contract Act. He purchased Schedule I property from the second defendant in good faith and for valuable consideration under Ex. A2 sale deed. Thereafter, he had been in possession and enjoyment of the same and effected improvements by planting coconut saplings. The suit filed as such is not maintainable. There is no misunderstanding between the first defendant and the plaintiff and in fact the suit had been brought about in collusion between the plaintiff and the second defendant.
5. The trial court, on consideration of the oral and documentary evidence, decreed the suit for declaration and recovery of possession in respect of one half of Schedule I property while negativing the relief of injunction. Aggrieved by that Judgment and decree, the first defendant preferred Appeal Suit No. 91 of 1979 before the learned Subordinate Judge, Tirunelveli. Learned Subordinate Judge, on consideration of the materials available on record and the arguments advanced by learned counsel on both sides, dismissed the appeal confirming the Judgment and decree of the trial court with costs, giving rise to the Second Appeal by the aggrieved first defendant.
6. Learned counsel appearing for the appellant would submit that the settlement of properties by second defendant in favour of the plaintiff under Ex. A1, on the facts and circumstances of the case, would tantamount to an agreement entered into between them to stifle the prosecution launched by the plaintiff against the second defendant, which is unlawful, as being opposed to public policy under Section 23 of the Indian Contract Act and consequently, the settlement deed under Ex. A1 is null and void and that the plaintiff cannot at all be conferred with any manner of right, title or interest in the properties settled in her favour under the document. In support of such a submission, learned counsel would draw my attention to the following decisions and a passage from the ‘Law of Contract’ by Mr. T.S. Venkatesa Iyer.
(1) Meenakshisundarammal v. Subramania Ayyar, . A Division Bench of this court considered the effect of Section 23 of the Indian Contract Act as follows :–
“It may sometime be difficult to draw the line between the acceptance of reparation by the party aggrieved and an agreement not to prosecute the offender. Nonetheless it is a real distinction. It is where an injured party forgets his duty to the State and exceeds his right of accepting reparation for the wrong done to him and enters the domain prohibited by law by agreeing to terminate the proceedings in a criminal court in a manner otherwise than in accordance with law, that Section 23 applies and invalidates such an agreement. The agreement itself being unlawful, any consideration for such an agreement paid by the offender is also unlawful. It is not termination of every criminal proceeding by agreement between the injured party and the offender that will fall within the scope of Section 23 as opposed to public policy. Section 345 Crl. P.C. permits an injured person to compound specified offences. It may be that compounding is effected after reparation is made for the wrong done to the injured party. But it is not the acceptance of that reparation that invalidates compounding even of the offences specified in Section 345. It is only where recourse is not had to Section 345, and the agreement between the injured person and the offender is to terminate the criminal proceedings against the offender otherwise than in accordance with Section 345 Crl. P.C. that the agreement would fall within the mischief of Section 23. What Section 345 permits cannot be viewed as unlawful or as opposed to public policy.
If performance of an agreement to compound an offence is lawful under Section 345, the agreement itself can never become unlawful.
Where an agreement for sale is between the accused and certain persons and the complainant plays no part in that and the agreement to compound the offence is between the accused and the complainant with which the vendees have nothing to do, they are really independent transactions and, therefore, Section 23 cannot be invoked to avoid the sale.”
(2) Ouseph Poulo v. Catholic Union Bank, . The Supreme Court has observed as follows :
“It is only where the agreement is supported by the prohibited consideration that it falls within the mischief of the principle that agreements which intend to stifle criminal prosecutions are invalid. The party challenging the validity of the impugned transaction must show that it was upon an agreement to stifle prosecution. If it is shown that there was an agreement between the parties that a certain consideration should proceed from the accused person to the complainant in return for the promise of the complainant to discontinue the criminal proceedings that clearly is a transaction which is opposed to public policy. Where the validity of an agreement is impeached on the ground that it is opposed to public policy under Section 23 of the Act, the party setting up the plea must be called upon to prove that plea by clear and satisfactory evidence. Reliance on a mere sequence of events may tend to obliterate the real difference between the motive for the agreement and the consideration for it”.
(3) V. Narashima Raju v. G. Gurumurthy Raju, . The Supreme Court has observed as follows : —
“In respect of a business which the appellant and the first respondent were carrying on in partnership along with others till September 15, 1942, the first respondent demanded that the account should be made and the profits divided between the partners. Disputes arose when dividing the profits that whereas the first respondent claimed for himself alone the amount due to him and the fourth respondent, the latter demanded that the said amount should be divided half and half between them. The first respondent then proceeded to file a criminal complaint in the Magistrate’s court against the partners including the appellant in which he alleged that the accused persons had committed offences under Sections 420, 465, 468 and 477 read with Sections 107 and 120-B of the I.P.C. The charge levelled by the first respondent was that the accounts of the partnership had been fradulently altered with a view to show that the 4th respondent was entitled to share equally the profits with the first respondent. Process was issued on the complaint and the matter stood adjourned for hearing to December, 30, 1943. On that date, the 1st respondent and the accused persons entered into an agreement under which the dispute between the appellant and others and the first respondent was to be referred to a named arbitrator on the first respondent agreeing to withdraw his criminal complaint. Accordingly, after the complaint was dismissed on the 1st respondent intimating to the court that he had no evidence to support his case the agreement signed by the parties was handed over to the arbitrator. In due course, the arbitrator pronounced his award and the 1st respondent took steps to have a decree passed in terms of the award. Thereupon, the appellant filed an application under the provisions of the Arbitration Act, 1940 for setting aside the award on the ground that the consideration for the arbitration agreement was unlawful as it was the promise by the 1st respondent not to prosecute his complaint which involved a non-compoundable offence and, therefore, the agreement was invaild under Section 23 of the Indian Contract Act, 1872. It was held that the arbitration agreement executed by the parties on December 30, 1943, was invalid under Section 23 of the Indian Contract Act, 1872 because its consideration was opposed to public policy. Consequently, the award could not be enforced”.
(4) T.S. Venkatesa Iyer’s The law of Contracts, Vol. 2 Fourth Edition :– The author has observed at page 145 as follows :
“An agreement for stiffling a prosecution is illegal, inasmuch as it impedes the administration of justice. “You shall not make a trade of felony.” “You cannot make a profit out of a crime”. These are the principles of law. Where a person has committed an offence, the law must take its course and if he be guilty, he must receive sentence; and so, if a person, in consideration of receiving money, promises to shield an offender, or not to prosecute him such an agreement is illegal”.
From the extracts as above, it is rather crystal clear that the burden is cast upon the person, who alleges that an agreement entered into between the parties to terminate criminal proceedings in a manner otherwise than in accordance with law is hit by the provisions of the Indian Contract Act.
7. In the instant case, there is no manner of doubt whatever that the plaint Schedule-I property, which is included as item 3 in Schedule II in the plaint and other three items of properties mentioned in Schedule-II belonged absolutely to the 2nd defendant. It is also not in dispute that at the time when the settlement deed under Ex. A-1 was executed in favour of the plaintiff, criminal prosecution initiated by the plaintiff against the 2nd defendant for the offence of bigamy under Section 494, I.P.C. was pending before learned Sub Divisional Judicial Magistrate, Shencottah in C.C. 165/63. A perusal of Ex. A1 would also unmistakably reveal that in view of the settlement of the properties mentioned therein by the 2nd defendant in favour of the plaintiff, the pending criminal case was to be compounded in court. The evidence of PW 1 also throws a flood of light on this aspect of the matter. No doubt it is true that best evidence in the shape of documents had not been placed before court for the proof of the fact that the bigamy case pending before court was compounded between the plaintiff and the 2nd defendant after obtaining the requisite permission under Section 320 Crl. P.C. Pertinent it is to mention at this juncture that the offence under Section 494 IPC is compoundable offence with the permission of the court. The mere non-production of such best evidence for proving the compounding of the offence after obtaining necessary permission of the court can by no stretch of imagination, in the circumstances of the case, be stated to have created an irreparable dent in the case of the plaintiff. The averments in Ex. A-1 coupled with the convincing evidence of the plaintiff as PW 1 that plaint Schedule II properties had been settled in favour of the plaintiff by the 2nd defendant, as a reparation to the injury done to her by having contracted a marriage with another woman during the subsistence of his marriage with the plaintiff in view of the plaintiff agreeing to have the matter compounded before court with the 2nd defendant would clinchingly show that the plaintiff and the 2nd defendant did not at all want to terminate the criminal proceedings otherwise than in accordance with law. Only if they did contemplate to terminate the criminal proceedings otherwise than in accordance with law, in the sense of the plaintiff herself agreeing to give evidence before court in such a way as to have the case ended in acquittal with a view to stifle the prosecution, then there will be some force in the argument of the 1st defendant’s learned counsel. There is no evidence on the part of the 1st defendant as DW 1 that the pending criminal prosecution had been terminated otherwise than by way of a compromise after getting requisite permission of the court. In such circumstances, it cannot be stated that the settlement of properties by the 2nd defendant in favour of the plaintiff under Ex. A-1 will fall within the ambit of Section 23 of the Indian Contract Act. In this view of the matter, the argument of learned counsel for the appellant that the transaction covered by the document Ex. A-1 would fall within the mischief of Section 23 of the Indian Contract Act, cannot at all be countenanced.
8. I am to point out here that both the trial court as well as the lower appellate court proceeded on the footing, under a misconception of the averments made in the plaint, that the suit had been filed by the plaintiff for the relief of declaration of her title and consequential reliefs. A bare scrutiny of the relief column in the plaint, which is in Tamil, would make it abundantly clear that the relief prayed for by the plaintiff is only for declaration of her right to be in possession of property in Schedule I of the plaint, as conferred on her under Ex. A1, and not declaration of title to the same. Further, what has been given under Ex. A-1 is only a life estate in favour of the plaintiff and the second defendant in respect of the properties mentioned therein vested remainder in favour of their heirs. As such, the relief granted by the lower appellate court confirming the decree of the trial court requires to be modified on this aspect of the matter by substitution of the decree in the following terms :
“There shall be a decree declaring the right of the plaintiff to be in possession of plaint Schedule-I property along with her husband, the second defendant during her lifetime”.
In this view of the matter, the plaintiff is not entitled to the other reliefs prayed for by her.
9. Subject to the modification as indicated above, the second appeal is dismissed, but in the circumstances of the case, I make no order as to costs.
