Matta Jaggilodu vs Matta Byramma

Varma, J.—This is an application by the defendant u/s 25, Small Cause Courts Act. The plaintiff is a widow of one Matta Ramayya, who happened to be the brother of the defendant. Matta Ramayya died about two years before the suit was filed.

The case for the plaintiff is that Matta Ramayya and the defendant separated about ten years before the date of the suit, and after separation Matta Ramayya acquired certain properties. There is a further allegation that after the death of Matta Ramayya while she was gathering her crops the defendant assaulted her and forcibly took away the crops. A criminal case was instituted by the plaintiff with the result that the defendant was convicted u/s 379, Penal Code and sentenced to pay a fine of Rs. 30 along with another accused who was also sentenced to a similar term. Out of the fines if realised a sum of Rs. 30 was to be paid to the plaintiff as compensation.

On appeal the conviction was set aside, but during the pendency of the appeal an agreement was entered into between the parties on 26th April 1937. One of the paragraphs in the petition of compromise is of importance, because it is upon an interpretation of that paragraph that the result of this petition will depend. I have been supplied with a translation of that paragraph by Mr. Ratho appearing on behalf of the petitioner. It runs as follows:

Subsequently there being criminal litigation I was fined. Therefore, in the presence of the respectable persons mentioned below, we have settled as below. That you keep the lands and house of your husband with you and enjoy them. That your 30 sheep do remain in my flock. You have to pay the wages for tending them. I shall give you the milk every day. If I misappropriate any of them and if it is so proved by the decision of the caste people I shall give the sheep together with any loss sustained by you. If the appeal is decided in my favour I shall pay you Rs. 30. I shall pay 2 bharanams of paddy and Rs. 30 relating to the crops of your land to...a creditor of my brother and 13 nowties of paddy to you for your maintenance. If you marry again all the properties of my brother and the child should be left with me. (Then comes the most important part of the agreement.) You should not contest the appeal either in person or through a pleader.

In the criminal appeal the defendant succeeded and his conviction and sentence were set aside. Mr. Ratho appearing on behalf of the petitioner urges that as this was an agreement against public policy, the plaintiff was not entitled to enforce this agreement. He has drawn my attention to Section 23, Contract Act, especially to illus. (h), which runs as follows:

A promises IS to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful.

On this point Mr. Ratho has drawn my attention to a decision of the Calcutta High Court in Nujebar Rahman v. Muktashed Hossain 40 Cal. 113 where a Gumashta was being tried for breach of trust, and at the suggestion of the trying Magistrate the matter was settled out of Court by the accused executing a mortgage bond in favour of his master for the amount embezzled, with the result that the prosecution was dropped and the accused was acquitted of the charge. The mortgage bond itself did not mention this fact of the withdrawal of the criminal case as forming part of the consideration. It was held that the mortgage bond was illegal and the suit based thereon was not maintainable, because, as Carnduff J. observed:

If a criminal case is declared to be non-compoundable, then it is against public policy to compound it, and any agreement to that end is wholly void in law.

Chapman J. agreed with this view of Carnduff J. in a supplementary judgment. Mr. Subba Rao appearing on behalf of the plaintiff opposite party has pressed two points in support of the case of the plaintiff. At first he says that, although there is a sentence in the agreement to the effect that "you should not contest the appeal either in person or through a pleader," the plaintiff had no voice in the matter once a conviction had been secured in trial Court. I have not been able to appreciate this point, especially in a case which is of a cognizable nature. Technically even before the trial Court, after the law was first put into motion, the plaintiff had no voice in the matter on the question of withdrawal or otherwise.

He has next drawn my attention to the case in Dwijendra Nath Mullick and Another Vs. Gopiram Gobindram, , a decision of a Division Bench of the Calcutta High Court, where it was held on the facts of that particular case that

the action of the plaintiffs (in that case) ought not to be regarded as contrary to public policy, because they did not take the administration of justice out of the hands of the authorities and themselves determine what should be done.

Looking at the decision as a whole I find that Walmsley J. himself observed that the offence was not a compoundable offence. He had observed earlier in the course of his judgment that

the offence with which defendant Dwijendra was charged was not compoundable under the provisions of the Criminal Procedure Code, and if the negotiations are to be regarded as a composition of such a non-compoundable offence then the conclusion must be that the object of the agreement was contrary to public policy.

No reference has been made to the decision in Nujebar Rahman v. Muktashed Hossain 40 Cal. 113 of the same Court and if I have to make a choice, with great respect I prefer the decision reported in Nujebar Rahman v. Muktashed Hossain 40 Cal. 113, because we are concerned, while discussing the question of the agreement being void or not, with what the object of the agreement was, and not as to what action was actually taken under the agreement.

On the facts of the present case the learned Munsif, who decided it, was himself conscious of the fact that if the agreement was executed on account of the criminal case the defendant''s contention should prevail. Looking at the agreement I have no doubt in my mind that the agreement that was arrived at between the parties was due to the criminal case.

Under the circumstances I hold that the agreement is void being against public policy, and the suit of the plaintiff must be dismissed. The petitioner is entitled to his costs: hearing fee one gold mohur.