Ramasray Rai vs Lal Bahadur Rai and Others

Mohamad Noor, J.—This second appeal arises out of a suit instituted by the plaintiff, respondent for specific performance of a contract for sale in respect of half of plot No. 642 (.03 acre in area) in village Ganghar. The plot lies in front of the houses of the parties. It appears that the plaintiff prosecuted some of the defendants for cutting bamboos from the disputed plot which he claimed as his and which, according to the defendants, belonged to defendant 4 having been purchased by him. During the pendency of the criminal case, obviously at the suggestion of the Magistrate who was trying the case, the parties referred the matter in dispute between them to the arbitration of the landlord of the parties, Babu Kailash Bihari. At his instance it was agreed that half of the plot should be sold by the defendants to the plaintiff for Rs. 25.

Thereafter the accused were acquitted in the criminal case and four months later defendant 1 received Rs. 25 from the plaintiff as the price of half of the plot to be sold and acknowledged it. The defendants however did not execute the sale deed and the plaintiff instituted the present suit. The trial Court dismissed the suit holding that the consideration of the contract was illegal, as against public policy u/s 23, Contract Act. On appeal by the plaintiff, the learned Subordinate Judge has reversed the decree of the trial Court, has decreed the suit and ordered the defendants to execute the sale deed. Defendant 4, in whose name the land stands, has preferred this second appeal. Two points arise in this appeal. One is whether defendant 4, in whose name the land stands and who was admittedly no party to the agreement, is bound by it and can be compelled to execute the sale deed; and the second is whether the contract is void on account of the fact that the consideration was stifling of the criminal prosecution for a non-compoundable offence. I shall take up the second point first.

The appellants mainly relied upon the decision of their Lordships of the Judicial Committee in Kamini Kumar Basu v. Birendra Nath Basu . In my opinion this case has got no application. In that case, a criminal case under various non-compoundable Sections of the Penal Code was pending and then a compromise was effected. Thereafter the complainant refused to adduce any evidence in the case and the prosecution was dropped. In the present case according to the evidence of defendant 1 himself, the criminal case had practically come to an end. When the agreement was arrived at, Ramsewak Rai, defendant 1, deposes as follows as to what happened in the criminal case:

The Court said that we had nothing to do with the case and have been falsely implicated, and that we might be ruined by payment of costs.

The word "we" is obviously a mistake for complainant as he later on says:

The Court did not say that I should be paid Rs. 25 as costs, he said that the case was false and should be compromised.

It is clear from this deposition that the learned Magistrate, who was trying the case, had already come to the conclusion that the criminal prosecution could not stand and obviously a case of theft was not likely to succeed in view of the fact that civil rights of the parties were involved. The second thing is that defendant 1 took Rs. 25 from the plaintiff as the price of the land four months after the criminal prosecution had come to an end and that this acceptance of the money can by itself be taken to be a contract having been entered into by the parties long after the criminal case was over. It was held in Onkar Mal Vs. Ashiq Ali that a compromise which is otherwise a fair and reasonable one is not in-validated because in connexion therewith a trifling charge of theft between the servants of the parties had been withdrawn.

I agree with the learned Subordinate Judge that the compromise in this case, by which the defendants agreed to sell half of the plot in dispute to the plaintiff, was a fair settlement of the dispute between the parties. The criminal case though nominally pending, had, according to the admission of defendant 1 himself, already come to an end inasmuch as the learned Magistrate had expressed his opinion that there was no case against the accused. Apart from this, as I have stated above, four months later, there was a renewal of the agreement by defendant 1 accepting the price and acknowledging it saying that it was the consideration of the promised sale. The learned Subordinate Judge is quite correct in holding that the real consideration of the promise to sell was the payment of this sum of Rs. 25 by the plaintiff to defendant 1.

The next question is whether defendant 4, in whose name the property stands, is bound by the agreement to which he himself was not a party. This issue is concluded by the finding of fact of the learned Subordinate Judge who has held that the defendants are members of a pint Hindu family and that defendant 1 was its karta. This defendant, on behalf of the family, was perfectly competent to enter into an agreement for sale and this agreement was for the benefit of the family inasmuch as it was to end a litigation which might have become a source of trouble and expense to the family.

On the whole I agree with the conclusions of the learned Subordinate Judge and dismiss this appeal with costs.