AHMAD HASSAN Vs. HASSAN MAHOMED MALEK

JUDGEMENT

(1.) These two appeals arise from a suit and a cross-suit, between father and Bon, the father claiming to eject, the son toretain possession of a house in virtue of an agreement passed by the father and sister-in-law permitting the son to occupy the house for life. It was common ground that this agreement was passed immediately after the complaint of prosecution instituted by the son's wife about a year before the suit in respect of grievous hurt alleged to have been caused to her by the mother and sister-in-law. The case was compounded at the instance of the son with the consent of the Court which entered an order of acquittal.

(2.) The trial Court held the agreement valid in law and not compulsorily registrable, upheld the claim of the son to continue to occupy the house, and rejected the claim of the father to evict. In appeal the District Court held that under Section 345 of the Code of Criminal Procedure the offence was compounded with the permission of the Court not by the injured person only, namely, the wife, and that, therefore, the agreement was against the provisions of Section 345, Criminal Procedure Code, and illegal and prohibited by law and unenforceable. As regards registration, it was of opinion that the document was compulsorily registrable, but that on the ground of part performance the son might have succedeed if the agreement had been held to be legal. The son appeals.

(3.) The agreement itself contains no reference to the prosecution. It is not disputed that the real consideration for the right to occupy the house for life in favour of the son, was an agreement to compound the complaint of a grievous hurt to his wife. The question is, whether the agreement is void under Section 23 of the Indian Contract Act, as being made by the husband and not by the injured wife. It is argued for the appellant-son that no question was raised in the Criminal Court as to whether the appellant had obtained his wife's consent, but, on the contrary the Criminal Court itself assumed this consent and allowed the case to be compounded, that such an agreement, though nominally by the husband was really made by the wife, and that even if it extended merely to an agreement with the husband to use his influence with the wife to whom grievous hurt was caused, it is valid in law. It is contended for the respondent-father that Section 345 of the Criminal Procedure Code, is exhaustive and the consent of the wife was necessary, and that of the husband was opposed to law and insufficient, but in either case the agreement was void, as in the case of Emperor V/s. Rahmat 30 Ind. Cas. 138 : 37 A. 419 : 13 A.L.J. 630 : 16 Cr. L.J. 586. and Mottai Reddy V/s. Thanappa Reddy 26 Ind. Cas. 181 : 37 M. 385.