GOVINDA PAI Vs. RAMA PAI

JUDGEMENT

(1.) The appellant, the second defendant, and his brother, the first defendant, were employees in a trade conducted by Dw. 1; and Dw. 1 started a criminal case against them for breach of trust. Two or three months thereafter the said defendants and their father and paternal uncle executed a usufructuary mortgage (Ext. D) in favour of Dw. 2 for Rs. 440/- containing a recital that the amount was to be paid to Dw. 1 in discharge of amounts taken by the first defendant from the trade for the maintenance of the family. The document recited further that Rs. 15/- were taken for the expenses of the document; that Rs. 425/- were to be paid to Dw. 1; and that another sum of Rs. 50/- was also paid to Dw. 1 towards the same liability. On the same day a lease deed (Ext. A.) was executed by the executant of Ext. D taking back the property on a monthly rent of Rs. 4-8-0. Within ten days of these documents Dw. 1 filed a petition before the criminal court stating that since his witnesses turned hostile, he was not in a position to substantiate his complaint. The criminal court thereupon discharged the accused (vide Ext. 1). More than 13 years thereafter the plaintiff (the respondent is his heir) purchased the rights under Ext. D and A for Rs. 250/-. The document recited that no rent was paid during all the 13 years, that the mortgage amount due was Rs. 425/- and that the arrears of rent due were Rs. 660/-. Nevertheless, the document said that the consideration for the mortgage would be Rs. 160/- and for the arrears of rent Rs. 90/- (vide Ext. B). A few months thereafter the suit giving rise to the second appeal was filed for arrears of rent and for recovery of possession of the property on the basis of the lease back (Ext. A.)

(2.) The second defendant appellant alone contested. He contended that no consideration passed under Ext. D and that Ext. D and A were executed only as consideration for discontinuing the prosecution against himself and his brother. He contended further that the plaintiff did not pay any consideration for the assignment under Ext. B. His further contention was that Ext. D and A were intended to stifle a criminal prosecution; and that for that reason they were illegal and unenforceable.

(3.) The Trial Court agreed with the contention of the appellant that Ext. D was not supported by consideration in the sense that neither Dw. 2 nor the plaintiff paid any money. The Trial Court also held that Dw. 1, Dw. 2 and the executants Ext. D and A all knew that it was intended only for discontinuing the prosecution; and that therefore, the documents evidenced an illegal contract which could not be enforced. The Trial Court consequently dismissed the suit: but on appeal the lower appellate court came to a different conclusion. It held that at the most the motive behind Ext. D alone could have been the dropping of the prosecution; but that, at any rate, the object of or the consideration for Ext. D could not have been the dropping of the prosecution. In that view it decreed the suit.