JUDGMENT
Innes, J.
1. First plaintiff is the adopted son. of Krishna Ayyan, who died’ on the 19th January 1880. Krishna Ayyan was admittedly divided from his. brother, the first defendant. The second defendant is the son of first defendant.
2. On the death of Krishna Ayyan, therefore, the adopted son was the person to perform his funeral rites, and the second plaintiff proceeded to perform them under authority from the first plaintiff, who was an infant. But the first defendant interfered and would not permit second plaintitf to perform the obsequies, but insisted on joining in them himself. They accordingly jointly set fire to the funeral pyre, and early next morning first defendant hastened, to the pile, collected the bones, and performed the ceremonies thereupon; so that when plaintiffs went to do the same, they found that the heap of ashes-containing the bones had disappeared. This necessitated the plaintiffs’ recommencing the ceremonies by making an image of Durba grass and burning it and performing the ceremonies to the imaginary bones. Even after this, the defendants again caused interruption to the ceremonies and threatened, to carry out the ceremonies they had commenced and act in other ways in a manner to prevent plaintiffs from performing the ceremonies with decency.
3. The widow was anxious to do anything to secure the conduct of the ceremonies free from molestation or disturbance. Friends assembled to compose matters, and it was arranged that first defendant was to allow the plaintiff’s to perform their ceremonies unmolested on condition of the first plaintiff through his guardian executing an absolute deed of sale for half of the family house.
4. Second plaintiff was to give a security bond to first defendant, binding, himself to get a deed of acquittance in regard to the moiety of the house on the infant attaining his majority, but in the meantime second plaintiff executed a promissory note for Rs. 500 in favour of one Kupperi Ayyan on account of first defendant, and Ramayyan, brother-in-law of first defendant, executed a similar note for the same amount in favour of the same person.
5. If the documents agreed to be eventually executed were not executed, the party in fault was to be compelled, by means of these instruments, to pay the amount to the other.
6. From the morning of the tenth day the ceremonies were allowed to be performed without interruption.
7. On the sixteenth day after the execution of the promissory notes, which was the twenty-fifth day from the death of Krishna Ayyan, Janaki Ammal, guardian of first plaintiff, executed the sale-deed A in favour of the first defendant, conveying to him the moiety of the house for Rs. 800. On the same date, second plaintiff executed an indemnity bond to first defendant for Rs. 1,000 binding himself to get the sale ratified by first plaintiff after he should have attained his majority, and in default to make good the amount from his own property; and, on the next day, the guardian of first plaintiff executed a rent agreement agreeing to occupy first plaintiff’s moiety of the house at Rs. 1-8-0 rent per annum.
8. Plaintiff’s seek the cancellation of all the above documents on the ground of coercion and Rs. 285 damages for the extra expenses necessitated in performance of the ceremonies through the conduct of defendants.
9. The issues settled were,–
whether plaintiffs executed exhibits A, B, and I with their own free will, and whether they are valid in law ?
whether plaintiffs are entitled to any and what damages, and, if so, from whom ?
10. The Subordinate Judge found the adoption proved, but considered that, as fifteen days had elapsed between the intervention of mediators at which the execution of the preliminary documents took place and execution of the final documents which it is sought to cancel, there cannot be said to have been coercion. He said:
Having thus coolly thought over the matter for fifteen days, and having decided to-give the deeds, the plaintiffs deliberately sign and register the deeds, and what is there now to justify their changing their minds? If they had thought it necessary to execute the sale-deed A, etc., for fear of the promissory note, how could that fear have influenced the first plaintiff who has given up the property and who is not a party to the promissory note.
11. He found the documents A, B, and I to have been executed by the plaintiffs of their own free will so as to be binding on them.
12. He dismissed plaintiffs’ suit except as to damages.
13. On appeal by the plaintiffs and cross-appeal by defendants, the District Judge said:
The first defendant, on the occasion of the death of his brother took, occasion to question the validity of the adoption of the minor, the first plaintiff, and he therefore objected to the performance of the funeral ceremonies by his proxy. It is of course somewhat difficult to determine whether he was acting bona fide in doing so, but his conduct has not given rise to any prosecution for an offence under the Penal Code. To induce him to withdraw his opposition, and to acknowledge the adoption, the compromise evidenced by the deeds now sought to be annulled was entered into. The plaintiffs’ case is that they were coerced into the execution of the deeds, and what amounts to coercion is explained by Section 151 of the Contract Act.
First defendant did not commit or threaten to commit any offence under the Penal Code and he did not detain anything which can be considered property, and his acknowledgment of the validity of the adoption constitutes sufficient consideration for the execution of the deed.
14. He accepted the finding of the Subordinate Judge as to the compensation to be awarded and dismissed both the appeal and the cross-appeal.
15. Appeal is now made to the High Court on the grounds–
that the transactions which plaintiffs sue to set aside are voidable under Section 192 of the Contract Act;
that there was no sufficient consideration to support the agreement in question, because first defendant all along well knew that his objections to the validity of the adoption were perfectly groundless ;
that the transactions in question are very different from the ordinary adjustment of bond fide disputed claims ;
that the transactions in question are a fraud upon the minor appellant; that the Lower Appellate Court has erred in overruling the grounds of appeal.
16. If the adoption had not in fact been made, the widow was the proper person to perform the funeral ceremonies, and the defendants, therefore, could have had no lawful cause for interfering with the performance of them. Defendants, therefore, became trespassers at the funeral pyre when they interfered with the obsequies, and they must have known that their conduct was likely to wound the feelings of the widow, if not those of the alleged adopted son. They, therefore, committed an offence under Section 2973 of the Indian Penal Code, and, if it could be shown that these unlawful acts were done with the intention of inducing the plaintiffs to enter into the documents now sought to be cancelled and that the documents were in consequence executed, the acts of the defendants would amount to coercion under Section 15 of the Contract Act, and the contract would be voidable.
17. But it is obvious that the real dispute was about the adoption, and the documents A, B, and I were executed to purchase the admission by defendants of the validity of the adoption and the abandonment by defendants of their reversionary claims on the death of the widow.
18. The outrageous acts committed by defendants were probably committed to induce plaintiff’s to come to some arrangement which would compensate defendants for such admission and for the relinquishment of their claims, and actually operated to induce the execution of the promissory notes; but I think the Courts have rightly found that those acts could not have operated to induce the execution of the documents sought to be cancelled. There was ample time for consideration, and the distress of mind caused by defendants’ acts was no longer operating at the date of their execution.
19. Then, can it be said that there was no consideration for the execution of the documents ?
20. It is found as a fact that there was an adoption. But, although the adoption may be established as a matter of fact, it is not shown that there were not objections taken to its validity, and even as a matter of fact defendant may not have been aware of it and may have disputed the adoption bond fide, in which case the withdrawal of his claim would be a good consideration for the promise made by plaintiff’s, Callisher v. Bischoffsheim L.R. 5 Q.B. 449. If it were alleged or shown that he was aware of the adoption as a fact and had no reason for disputing its validity, there would be ground for saying that there was no consideration for the obligations entered into by plaintiffs.
21. In Edwards v. Baugh 11 M. & W. 641 Lord Abinger said that a man might (without cause) threaten to bring an action against any stranger he might meet in the street, and intimated that his subsequent forbearance to do so would not be a consideration for a promise by the stranger. There must be such a claim as affords reasonable ground for the promise.
22. Plaintiff was, I think, bound to show that there was no reasonable ground for defendant’s opposition, and therefore no reasonable ground for plaintiff’s promise when that opposition was withdrawn. He has not done so, and he has not even set up this contention so as to afford the opportunity for framing an issue in which the question might be tried.
23. I think we should, therefore, dismiss the second appeal with costs.
Kindersley, J.
24. I agree that this second appeal ought to be dismissed. The suit was brought to set aside certain documents on the ground that they had been obtained by coercion. But upon the trial it was found that there had been no such coercion as would justify the avoidance of the contracts under the Indian Contract Act, Section 15; and in appeal, and second appeal, the plaintiff has taken up new ground, and has pleaded, not so much coercion as fraud, and want of consideration. These grounds having been taken for the first time on appeal, they have not been regularly tried, and the plaintiff, is not now entitled to have them tried.
25. But from the record as it stands, I do not think that any fraud has been proved; nor does it appear that the documents were executed without consideration. The great struggle between the parties was about the adoption of the minor plaintiff. There is no proof that the execution of the documents was obtained either by coercion or by fraud. The compromise was arranged by mediators, and the deed of sale was not executed till some fifteen days afterwards. Therefore it cannot be supposed that there was either coercion or fraud. In all probability the transaction was a fair one. It is clear that there was consideration for the sale and other transactions in the concessions made by the first defendant, and more particularly in his acknowledgment of the first plaintiff’s adoption, not to mention the price for which the house was sold.
26. Therefore no ground has been shown for avoiding the contracts, or for setting aside the documents in question.
27. The second appeal must be dismissed with costs.
1″ Coercion” defined.
[Section 15 : Coercion is the committing, or threatening to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.
Explanation.–It is immaterial whether the Indian Penal Code is or is not in force in the place where the coercion is employed.]
2 Voidability of agreements without free consent.
[Section 19 : When consent to an agreement is caused by coercion, undue influence, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
A party to contract, whose consent was caused by fraud or misrepresentation, may, the thinks fit, insist that the contract shall be performed and that he shall be put in the position in which he would have been if the representations made had been true.
Exception.–If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section seventeen, the contract, nevertheless, is not voidable, if the party, whose consent was so caused, had the means of discovering the truth with ordinary diligence.
Explanation.–A fraud or misrepresentation which did not cause the consent to a contract of the party, on whom such fraud was practised, or to whom such representation was made, does not render a contract voidable.]
3 Trespassing on burial places.
[Section 297 : Whoever with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place or sepulchre or any place set apart for the performance of funeral rites, or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.]
