R.S. Bion vs Sheogulam Lal and Others

Miller, C.J.—This is an appeal from a decision of the Officiating Subordinate Judge of Muzaffarpur, reversing a decree of the Munsif of Motihari.

The plaintiff, who is the appellant before us, instituted the suit claiming to recover a sum of Rs. 1,000 and interest amounting to Rs. 492-13-0 from the defendants under a bond, dated the 20th September, 1916, signed by Sheogulam, the first defendant, and Ramji Lal, his cousin, since deceased. The other defendants in the suit are Satnarain Lal, the brother of Ramji Lal, and Sadhasaran Lal, the father of Ramji and Satnarain. These four defendants formed a joint family, Ramji Lal having died since the suit was instituted. The circumstances under which the bond was executed were shortly as follows:

The plaintiff is the lessee of certain property of which the defendants were tenants under him. Ramji Lal, one of the tenants, acted as the patwari of the plaintiff and collected the rent from the other defendants. In the year 1916 a sum of rent was due and a further sum amounting to something like Rs. 1,000'' was also due from Ramji Lal, that sum having been collected by him but not accounted for to the plaintiff. As the plaintiff could not get this sum out of Ramji Lal he took criminal proceedings against him and prosecuted him, the charge being one u/s 408 of the Indian Penal Code which relates to criminal breach of trust by a clerk or servant. Whilst that prosecution was pending in the Magistrate Court the plaintiff entered into the bond in question with Ramji Lal and Sheogulam who purported to act on behalf of themselves and the other members of the joint family. The bond in question admitted the liability of the defendants for the sum of Rs. 1,400 and recited that Rs. 400 was paid in cash and as to the balance they agreed to pay it back within one year and if it should not be paid within one year then certain interest was to run upon the amount due. At the time, when this bond was executed Ramji Lal had been arrested and was in prison. There is no mention in the bond itself that the consideration for executing the bond was that the prosecution against Ramji Lal should be withdrawn. The offence of which he was charged was a non-compoundable offence bat on the same day on which the bond was executed, namely, the 20th September, 1916, the complainant Anup Lal, who was acting in this matter as the agent of the plaintiff, filed an application before the Magistrate in these terms: "In the above case the accused having appeared is ready to render account and whatever amount is found due on account has been paid in cash and through bond. Therefore, on filing this petition your petitioner prays that the case may be struck off the file." Amongst other defences to the suit a plea was raised that the bond was illegal by reason of the provisions of Section 23 of the Indian Contract Act, which provides that "The consideration or object of an agreement is lawful, unless it is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of another; or the Courts regards it as immoral or opposed to public policy." It was contended that under that Section the agreement entered into in the bond was unlawful, and, therefore, unenforceable because a part of the consideration was that the prosecution against Ramji Lal should be dropped. If this could be made out it seems to me, that there can be no question about the matter. If in fact the whole or part of the consideration for the bond was the dropping of the prosecution against Ramji Lal then, clewly, the whole agreement was unlawful. The illustrations given to that Section of the Indian Contract Act seem clearly to establish this contention. Illustration (h) is as follows:--"A promises B 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." If for the word "robbery" we substitute "embezzemnnt" then the case comes exactly within the illustration (h) appended to the section.

The question whether or not the dropping of the prosecution was a part of the consideration of the bond is, to my mind, purely a question of fact. There were several facts in the case from which it might; be inferred that the plaintiff in taking this bond from the defendants had agreed to drop the prosecution against Ramji Lal. The learned Munsif before whom the case came for trial apparently was much influenced by the fact that the defendants undoubtedly owed the money and that I think, can hardly be disputed. They owed the money for rent and Rimji Lal owed to the plaintiff undoubtedly a sum of money, something like Rs. 1,000 for money already collected. He accordingly came to the conclusion that the agreement come to by the bond of the 20th September, 1916, was a valid agreement and the fact that the prosecution had on the same day been dropped was not a matter which ought,, to be connected with that agreement. I am not saying that the learned Munsif was not entitled as a Judge of fact to refuse to draw the inference which he was asked to draw from the facts proved before the Court, but when the matter went to the learned Subordinate Judge on appeal he took a clear view that upon the facts proved it had been established that the withdrawal of the prosecution did form an essential part of the consideration of the bond. He was influenced in this view by the wording of the petition of withdrawal, as he states in his judgment, and he thought that the other facts and circumstances of the case also justified his view. I have stated what the main facts were in the case and the question, to my mind, was purely one of the inferences to be drawn from those facts. The learned Subordinate Judge drew the inference that the withdrawal of the prosecution was an essential part of the consideration for the bond and it is impossible to my mind for us sitting here as a Court of second appeal to say, that he was not justified in drawing that inference from the facts in the case. The matter was one purely for the learned Judge and having arrived at the conclusion at which he did it seems to me that the case is concluded by the findings. In these circumstances, much as I regret that the liability of the defendants cannot be established in this suit, nevertheless I am constrained to dismiss this appeal affirming the decision arrived at by the learned Subordinate Judge. The respondents are entitled to their costs of this appeal.

Kunwant Sahay, J.

I agree.