BANI RAMCHANDRA SALVI Vs. JAYAWANTI GOVIND PANDIT

JUDGEMENT

(1.) The plaintiff sued for specific performance of a contract by which the husband of the defendants agreed to convey to her certain land for a consideration of Rs. 150. Annexed to the contract was a term that in the event of a criminal prosecution for criminal breach of trust instituted by the plaintiff against the said intending vendor not being withdrawn, the contract was not to be enforced. The explanation briefly is this. The plaintiff had previously sold this land to Ramchandra. The agreed price was Rs. 250 in all. Ram-chandra advanced to the plaintiff Rs. 115 to pay off a mortgagee and a further sum of Rs. 135, of which Rs. 100 at any rate was either taken back by Ramchandra or deposited with him by the plaintiff. Admittedly the plaintiff retained Rs. 35, which, with the Rs. 115 paid to the mortgagee, makes Rs. 150. In respect of the other Rs. 100 she complained that after she had deposited it with Ramchandra he criminally misappropriated it in the sense that he withheld it and denied her right to obtain it from him. That was the origin of the criminal prosecution.

(2.) It is perfectly clear from the agreement upon which this suit is brought, Exh. 27, that Ramchandra, husband of the defendants, virtually admitted the truth of the allegations made by the plaintiff and was ready to make complete reparation in the terms of this agreement, provided that the criminal law stayed its hand. Thus all the equities are clearly on the side of the plaintiff. If she cannot enforce this contract, she must lose her land and she must lose the Rs. 100, part of the consideration of which Ramchandra had defrauded her. It appears that pursuant to this agreement the plaintiff did make an application to the Magistrate to withdraw the prosecution. As, however, the offence charged was not compoundable, it is clear that unless the Magistrate had failed in his duty or mistaken the facts, it no longer lay in the power of the plaintiff to affect the course of the trial. Just about that time, however, the Magistrate was transferred and the case was delayed. Before it was resumed Ramchandra died. There was another person Dinkar co-accused with the defendant and we are told, though we can find no proof of the fact, that the prosecution against Dinkar was dropped.

(3.) Now, upon these facts we have to determine whether the contract, Exh. 27, can be specifically enforced. It is pretty clear that if the concluding term had been complied with, or could have been complied with, then part of the consideration would have been void on the ground of being opposed to public policy. No one may contract upon the footing of part of the consideration being the compounding of a felony. But assuming that this term could not have been complied with, then the whole contract becomes equally unenforceable for failure of an essential condition. So that in either view it is very clear upon an understanding of the facts and the terms of the contract that the plaintiff cannot have it specifically enforced.