LOGANATHAN MINOR Vs. PONNUSWAMI NAICKER

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent from the decision of our learned brother Venkatadri, J. , confirming the judgment of the court of first instance, plaintiffs 1 and 2 are the appellants. The facts of the case are within a narrow compass. The suit statedly one for partition is in fact and substance an attempt by a Hindu son to free his share in the family properties from a debt incurred by his father. Defendants 1 and 2 in the suit are brothers and members of a joint Hindu family. The first plaintiff is the son and the second plaintiff, the daughter of the second defendant. The third plaintiff is the wife of the second defendant while the fourth plaintiff is the wife of the first defendant. A daughter of the first plaintiff figures as the fifth plaintiff. The tenth defendant in the suit is the Official Receiver in the Insolvency of defendants 1 and 2 and the remaining defendants are creditors and decree-holders. The only debt that is really under challenge is the decree debt in O. S. 392 of 1955 on the file of the Subordinate Judge's Court, coimbatore for a sum of Rs. 15000 in favour of defendants 3 to 5. These defendants are the sons of one Rangaswami Naicker, brother of the mother of defendants 1 and 2. It emerges from the evidence that on the death of rangaswami Naicker in or about 1946 leaving defendants 3 to 5 minors defendants 1 and 2, in view of their close relationship, assumed the management of the properties of defendants 3 to 5 but failed duly to account for the income and profits from the properties of defendants 3 to 5. It is common ground that defendants 1 and 2 were in possession of the properties of defendants 3 to 5 for about six years. It is stated for these defendants that by unauthorised application of their funds defendants 1 and 2 added to their own wealth and acquired the suit house and improved their dry lands, sinking a well at a heavy cost. Later on defendants 3 to 5 coming of age and insisting upon an accounting for the assets handled by defendants 1 and 2 at a mediation it was decided that defendants 1 and 2 should take all the then standing crops, retain the cattle and moveables in their possession and pay defendants 3 to 5 a sum of Rs. 20000. It is this liability that formed the consideration of a promissory note which resulted in the decree of court in O. S. 392 of 1955. in the suit on the promissory note defendants 1 and 2 raised various contentions; but eventually settled the claim for a sum of Rs. 16000 taking three months' time to pay. The mediation was on 1-6-1962 and the promissory note for the sum of Rs. 20000 which defendants 1 and 2 had to pay was executed on 9-7-1962. It transpires that shortly after the mediation there was a criminal complaint by the third defendant charging the present second defendant with offences under Sections 324, 325, 404 and 384 I. P. C. Actually the complaint was taken on file only under Sections 404 and 384 I. P. C. in his sworn statement then recorded the third defendant stated that the accused the present second defendant, was managing his affairs and properties after the death of his father, and that he took over the stock of timber the deceased had left and made use of it for construction of his own house. The complaint set out that at a panchayat held on 1-6-1962 the accused had agreed to execute a security bond over his terraced house and dry land in a sum of Rs. 20000 the amount being payable to defendants 3 to 5 within a year. From the calendar and judgment of the criminal case in C. C, no. 837 of 1962, on the file of the Third City Sub-Magistrate, Coimbatore, it is seen that the case was taken up for trial on 11-10-1952 and the accused discharged under Section 253 (1), Crl. P. C. finding that no case was made out. The accused is shown to have been apprehended only on that date i. e. on 11-10-1952. The order shows that the complainant examined himself as P. W. 1 and deposed that the accused was his uncle, and that the matter being a family dispute the relatives were unwilling to take part in the case. The complainant deposed also about the panchayat. He stated that the panchayatdars were refusing to depose in the matter, and that he had no other witnesses to examine. It is in this background that the appellants question the validity of the debt under two counts; first it is contended that the promissory note came into existence while a prosecution had been launched against the second defendant, that the promissory note was intended to stifle the pending criminal prosecution, and that so it was vitiated as opposed to public policy. Secondly it is contended that the debt incurred was an Avyavaharika one and that therefore the debt cannot bind the son. The plaint of course, contains the usual reckless and meaningless allegations particularly in the context of the case that defendants 1 and 2 neglected their family, that they colluded with defendants 3 and 4, and that the suit O. S. 392 of 1955 was itself a collusive suit on a promissory note without any consideration. The Subordinate Judge found that the promissory note was binding on the plaintiffs, that the suit was not collusive, and that the decree was not vitiated in any manner. Our learned brother, Venkatadri, J. , has on an elaborate consideration of the law applicable in the matter and in the light of the facts that emerged from the record, affirmed the decree of the trial court and dismissed the appeal. It is held that there is absolutely no evidence to connect the criminal prosecution with the execution of the promissory note. The only witness for the plaintiff in the suit, the mother of the plaintiffs as P. W. 1 does not even whisper a word about the circumstances under which the promissory note came into existence. It is pointed out by the learned Judge that she does not depose to any coercion, undue influence or pressure being brought upon the second defendant to ret him execute the promissory note. The fourth defendant has spoken in detail about the management of the estate by defendants 1 and 2, the circumstances under which the promissory note came to be executed, the suit thereon and the compromise decree. One of the Panchayatdars had been examined as D. W. 4. Defendants 1 and 2 have not gone into the witness box. In these circumstances, our learned brother, remarked that there was no direct evidence to connect the promissory note with the criminal prosecution.

(2.) BEFORE us learned counsel for the appellants, the son and daughter of the second defendant, strenuously contended that as it has been made out that a criminal prosecution was pending against the second defendant and the promissory note had been executed pending the criminal prosecution, it was not only a legitimate but a necessary inference that the promissory note was executed in consideration of dropping the criminal prosecution, scuttling it by not prosecuting it. Learned counsel contended that the proper inference in this case should be that the launching of the prosecution and the execution of the promissory note related to each other as cause and effect. According to learned counsel the fact that the complainant had appeared at the trial of the criminal case and examined himself as P. W. 1, was not of much significance; nor the fact that the Sub-Magistrate had discharged the accused holding that no case was made out, as material factor in the examination of the question whether the promissory note was given in consideration of withdrawal of the prosecution. Learned counsel points out that in the very nature of things there will not be direct evidence, and that it is a matter for inference from circumstantial evidence. According to learned counsel the sequence of events and the bland admission of the complainant in the criminal Court that his witnesses would not help him are tell-tale and indicative that the prosecution was not pressed for the reason that the complainant had consideration for the same.

(3.) AGREEMENTS for stifling prosecutions, are well known classes of agreements which the court refuses to interfere as falling under Section 23 of the Contract Act. It is based on the principle that no man shall trade on a felony. If the accused person is innocent, the law is abused for, the purpose of extortion, and if he is guilty in fact, the law is eluded by a corrupt compromise screening the criminal for a consideration. The offences for which the complaint was taken on file are under sections. 384 and 404, I. P. C. which are not compoundable and an agreement made for the purpose of stifling the prosecution in the case, if made out, would certainly invalidate the promissory note. But for Section 23 of the Contract Act to apply the dropping of the criminal prosecution must be at least a part of the consideration for the promissory note. It is pointed out by Venkataramana Rao, J. , in Veerayya v. Sobanadri, ILR (1937) Mad 471 at pp. 474, 475= (AIR 1936 Mad 656 at p. 658)