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Judgment
Rajagopalan, J.—It was common ground that the four items of properties, a fractional share in which Meenakshi Sundarammal, the plaintiff
in O. S. N. 23 of 1945, and her daughter, Shanmuga Sundarammal, the plaintiff in O. S. No. 24 of 1945, claimed belonged to Appavoo Pillai.
Appavoo died in 1922. He had three sons, Kannuswami, Arumugam and Chinnaswami and a daughter, Ponnammal, who predeceased him.
Ponnammal had three sons Neelamegam, Muthukrishnan and Ramaswami, Meenakshi Sundarammal was one of the two daughters of Ponnammal;
and Meenakshi Sundarammal married her maternal uncle Arumugam. On the date of Appavoo''s death Arumugam and his wife Meenakshi
Sundarammal had two daughters, Kanakavalli and Shanmuga Sundarammal; a third daughter named Baby was born some time after Appavoo''s
death; they had no sons. Of these three daughters, Kanakavalli died in 1938 before she was 18. Of the three sons of Appavoo, only Kannuswami
had both sons and daughters. Neither Arumugam and Chinnaswami had any sons.
The genuineness of Ex. P-1 as the last will ahd testament of Appavoo executed by him shortly before his death was never in dispute. The
portions of Ex. P-1 relevant for purposes of these appeals are as follows :
After my lifetime, my eldest son T. A. Kannuswami shall enjoy the income derived from the storeyed house, which is in Mission Hill, Coonoor,
. . . He shall have no right whatever to mortgage the above house usufructuarily or to sell it. His ''pillaigal'' shall have full rights to it after they attain
majority . . .
My eldest son and last son (Kannuswami and Chinnaswami) shall improve the land of the extent of about 4 acres, which is in Paliyar . . and
enjoy the income derived therefrom. They shall have no right whatever either to mortgage it usufructuarily or to sell it. Their ''Pillaigal'' alone shall
have full rights to it after they attain majority.
The cattle-shed together with the articles therein, belonging to me and situate in Mission Hill, Coonoor taluk, the Sinai Kompany coffee estate
known as Kadirvel Thottam belonging to me . . . shall be enjoyed with all rights, by my second son T. A. Arumugam and his wife and ''Pillaigal''
(these are items 2 and 1 respectively of the schedule to the plaints).
. . . the remaining houses, shops and upper storeys belonging to me and situate in Vaithialingam Pillai Street, Coonoor, and the income derived
therefrom . . . shall be enjoyed by my last son T. A. Chinnaswami. He shall have no right whatever either to mortgage them usufructuarily or to sell
them. His ''pillaigal'' alone shall enjoy them with full rights after they attain majority.
The camsnor garden in Panchathala near the Cordite factory, Coonoor taluk . . . . shall be divided into three shares and 1/3 share shall be
enjoyed by my eldest son, 1/3 share by my second son and 1/3 share by the last son, according to the terms (shara) mentioned in paragraphs 1 to
4 (this is item 3 of the schedule to the plaints).
Out of the lands situate in Woriyur Mala-kulam . . . . the remaining lands shall be divided into four shares and 1/4th share shall be enjoyed by
the first son, 1/4th share by the second son, 1/4th share by the last son and 1/4th share by my daughter''s three sons, viz., Neelamegam,
Muthukrishnan and Ramaswami according to the terms (shara) mentioned in paragraphs 1 to 4. In respect of the sale of 3/8 portion of the above
lands, obtained from Ramaswami Pillai''s wife. J. Ammakannu Animal, a sum of Rs. 730 was reserved with me for the minor, which the four
sharers mentioned in paragraph 6 above shall pay to the above Ammakannu Ammal''s son on his attaining majority.
Arumugam claimed an absolute interest in the whole of item 1 and mortgaged it under Ex. D.3(b) on 16-7-1924 for Rs. 3000 to Rao Bahadur
N. Ramaswami Aiyar. It was not denied that Arumugam produced a false copy of his father''s will to substantiate his claim, that he alone was
entitled to the whole of item 1 under that will. Ramaswami Aiyar filed O. S. No. 74 of 1928 to recover the money due under Ex. 3(b) and
obtained a final decree. In execution of that decree, he brought item 1 to sale and at the sale held on 1-9-1930, it was purchased by the second
defendant, A. Ramamurthi Aiyar. Soon after the sale, when the second defendant discovered that under the terms of Ex. P-1 Arumugam was not
entitled to the whole of item 1, the second defendant applied to the court to set aside the sale, and despite the objections of the decree-holder,
Ramaswami Ayyar, the sale was set aside. Meanwhile, on 27-1-1930, Ramaswami Aiyar filed a complaint to the police charging Arumugam with
having committed an offence punishable u/s 420, I. P. C., alleging that Arumugam had obtained the mortgage loan by making false representations
to the mortgagee, Ramaswami Aiyar.
On 7-2-1931, the police filed a charge-sheet u/s 420, I. P. C. against Arumugam in the court of the Joint Magistrate at Coonoor. After examining
the witnesses for the prosecution, the Magistrate framed a charge u/s 420, I. P. C. against Arumugam. On 16-4-1931, Arumugham and his wife
Meenakshi Sundarammal, executed Ex. D-3. (copy of that was also filed as Ex. P-2) selling the-whole of item 1 to defendants 1, 2 and 3 for Rs.
6500. Out of this amount, Rs. 6000 was paid to Ramaswami Aiyar. Ex. D.3 was registered on 21-4-1931. On the same day, an application was
made to the Magistrate by Ramaswami Aiyar and Arumugam u/s 345, Cr. P. C. Ramaswami Aiyar was permitted by the court to Compound the
offence arid Arumugam was acquitted. Subsequently, on 30-6-1934, defendants 1 to 3 sold the property, item 1, to defendant 4 and defendants
19 to 22 under Ex. D-3(a). It was these defendants that were in possession of this item when the suits were filed.
Arumugham and his wife Meenakshi Sundarammal sold item 2 under Ex. P-3 dated 26-11-1932 to the seventh defendant for Rs. 1300. The
three daughters of Arumugham, who were minors then, were also enumerated as vendors; Arumugham purported to act as their guardian.
Under the terms of Ex. P-1, Arumugham was entitled only to a third share in item 3. That share he purported to convey to defendant 7 under
the sale deed dated 7-2-1930. The document itself was not marked in evidence but it was admitted that the sale deed was executed by
Arumugham alone on the footing that a third share in item 3 belonged exclusively to him.
It was again common ground that Appavoo and the 18th defendant jointly owned the lands in Melakulam village in Tiruchirapalli district, and
that Appavoo was entitled to a 7/8 share and the 18th defendant to the remaining 1/8th share. Paragraph 6 of Appavoo''s will Ex. P-1 itself recited
that a portion of the purchase price for 3/8 of this village was retained by Appavoo and the legatees were directed to pay this amount. The amount
was not paid. To enforce the vendor''s lien, O. S. No. 49 of 1929 was filed and the 3/8 undivided share in the village was brought to sale in
execution of the decree in that suit. One Meera Moideen Rowther purchased this 3/8 undivided share. Ex. D-12 was the sale certificate granted to
him. Subsequently, Meera Moideen Rowther conveyed the rights he had acquired in this 3/8 share to the 18th defendant under Ex. D.16 on 12-6-
1935. There remained 4/8 which belonged to Appavoo. This 4/8th share also the 18th defendant acquired under the sale deed Ex. P-4 dated 11-
1-1935. The vendors under Ex. P-4 were eight in number, Arumugam, the three sons of Ponnammal, the three sons of Kannuswami, who was
dead by then, and the widow of Chinnaswami.
Even during Appavoo''s lifetime he instituted O. S. No. 2 of 1930 against his co-sharer Kasa Mian Rowther, the 18th defendant in the present
actions, for a partition of Appavoo''s 7/8th share in the village. Ex. D.6 was the decree of the trial Court. That was modified in Appavoo''s favour
by the decree on appeal, Ex. D-8, dated 30-1-1925. By that date Appavoo was dead, and his legal representatives were brought on record. Only
six persons were brought on record then as the legal representatives of Appavoo, that is, Arumugam, Chinnaswami, the three sons of Ponnammal
and a son of Kannuswami.
Meenakshi Sundarammal claimed a half share in each of these four items. It should be remembered that it was a half share in 1/3 of item 3 and a
half share in 1/4 of item 4 which itself constituted only a 7/8th share in Melakulam that had belonged to Appavoo, that Meenakshi Sundarammal
claimed. She claim ed that she was herself a legatee under the terms of Appavoo''s will, Ex. P-1 and she got a share equivalent to that of
Arumugam in each of these four items. Her further Claim was that on the death of her daughter Kanakavalli in 1938, unmarried and still a minor,
Meenakshi Sundarammal inherited Kanakavalli''s fourth share in each of these items. Meenakshi Sundarammal further claimed that the sales
effected under Ex. D-3, Ex. P-3, the sale deed dated 7-2-1930 and Ex. P-4 did not convey to the vendees either Meenakshi Sundarammal''s
1/4th share or Kanavalli''s 1/4th share in these four items.
We shall set out in further detail the claims and defences when discussing the evidence under each of these items of properties. Shanmuga
Sundarammal in her turn claimed that under the terms of Appavoo''s will Ex. P-1 she was entitled to a fourth share in each of these four items along
with Arumugam, his wife and their daughter Kanakavalli, and that Shanmuga Sundarammal''s interests were not affected by the transactions
entered into by Arumugam during her minority. The suits themselves were filed on the basis of petitions presented on 15-4-1943 for permission to
sue the defendants in ''forma pauperis''. The learned Subordinate Judge dismissed the suits: Against the dismissal of O. S. No. 23 of 1945
Meenakshi Sundarammal filed A. S. No. 184 of 1947, and against the dismissal of O. S. No. 24 of 1945, Shanmuga Sundarammal filed A. S.
No. 185 of 1947. Both the appeals were instituted in ''forma pauperis''. The two suits were disposed of by the learned trial Judge by a single
judgment and the appeals also were heard together.
Before considering the validity of the alienation of each of the four items, it is desirable to decide what interests, if any, Meenakshi Sundarammal
and Shanmuga Sundarammal took in each of these four items, under the terms of Appavoo''s will, Ex. P-1.
One of the questions for determination was whether the Tamil word ''pillaigal'' could apply to the daughters of Arumugam. The learned
Subordinate Judge was of the view that that expression could indicate only sons and not daughters. No doubt normally only sons are indicated by
the Tamil word ''pillaigal''. The first defendant examined as D. W. 2 admitted that in Coimbatore district ''Pillai'' is sometimes used to denote a girl.
D. W. 2, it should be remembered, was an advocate who practised both in the Coimbatore and Nilgiri districts. The expression ''pillaigal''
however, has to be construed mainly with reference to the context in which that expression was used by the testator himself in Ex. P-1 and judged
by that test there appears to be no difficulty in holding that by that expression the testator meant ""children"" without any reference to the sex of the
children.
This is a case where the testator provided his own lexicon in his will. Wherever he referred to a son, the expression he used was ''kumaran''. When
he referred to a daughter, for example, his own daughter Ponnammal, the expression used was ''kumarathi''. On the date of Ex. P-1, the testator
was certainly aware of the fact, that two of his sons Arumugam and Chinnaswami had no male issue, but that they had daughters. There was also
the fact conceded by D. W. 2 that in that locality the expression ''pillaigal'' was also used in reference to female children. Under these
circumstances we have to hold that when the testator used the expression ''pillaigal'' with reference to the issues of his three sons, the testator
indicated their children without any reference to the sex of the children and that it was not the intention of the testator to confine the expression
''pillaigal'' only to the male issue of his sons.
Though the daughters of Arumugam and Meenakshi Sundarammal would come within the scope of the expression ''pillaigal'', it should be
remembered that only two of them Kanakavalli and Shanmuga Sundarammal, were in existence on the date of the death of the testator. The third
daughter Baby Animal, who was born subsequent to the testator''s death, could not claim to be a legatee; nor was any such claim put forward.
The construction of the bequest of items 1 and 2 in paragraph 3 of the will Ex. P-1 presents no difficulties. It was on absolute bequest to each
of the legatees, and the legatees named were Arumugam, his wife and ''pillaigal'', which should be construed to mean Arumugam, his wife
Meenakshi Sundarammal and their daughters Kanakavalli and Shanmuga Sundarammal. Each of them therefore got a fourth share in items 1 and 2
under the terms of paragrap 3 of the will.
There was no specific reference to Arumugam''s wife and children either in paragraph 5 under which item 3 was bequeathed, or in paragraph
6, under which item 4 was bequeathed. The legatees specifically named with reference to each of the three shares in item 3 in paragraph 5 of the
will were the three sons of the testator. Similarly, the legatees specifically named with reference to each of the four shares in item 4 in paragraph 6
of the will were the three sons of Appavoo who each took a fourth share, and the three sons of Ponnammal specifically named, who between them
took the remaining fourth share. But the testator also specifically recorded with reference to the bequest to each of his three sons in paragraphs 5
and 6 of the will, that each of them should enjoy his share according to the terms (shara) mentioned in paragraphs 1 to 4 of the will.
We are not really concerend in these appeals with defining the interests, if any, of the children of Kannuswami and Chinnaswami in items 3 and 4
under the provisions of paragraphs 5 and 6 of the will. The question for determination is whether Arumugam''s wife and children shared the legacy
in items 3 and 4 as well along with Arumugam, that is, whether the direction that the sons of the testator should enjoy the bequest in paragraphs 5
and 6 in accordance with the terms mentioned in paragraphs 1 to 4 of the will should be construed to mean that whatever was bequeathed to
Arumugam in paragraphs 5 and 6 of the will, he shared with his wife and children as specified in paragraph 3 of the will.
Paragraphs 1, 2 and 4 made it clear that it was only a restricted right of enjoyment for the lifetime of the two sons Chinnaswami and
Kannuswami that the testator conferred on them in the legacies specified in these three paragraphs. After the death of each of them his children
took these properties absolutely. The learned counsel for the appellants urged that these paragraphs should be construed to mean a direct bequest
to the children of Chinnaswami and Kannuswami, the enjoyment being postponed till after the death of Chinnaswami and Kannuswami. The
question does not really arise for determination, but should it be necessary to decide the issue, we should reject this contention and hold that it was
only a vested remainder that the children of Chinnaswami and Kannuswami took under paragraphs 1, 2 and 4 of the will.
The testator obviously had more confidence in Arumugam and his wife, than in his sons Chinnaswami and Kannuswami. While he specifically
conferred only a restricted right in the bequests to Chinnaswami and Kannuswami, it was an absolute interest that the testator conferred on
Arumugam and his wife Meenakshi Sundarammal. It was an absolut interest that the testator conferred on the sons of his predeceased sister
Ponnammal. It should be remembered that Meenakshi Sundarammal was the daughter of Ponnammal. The dispositions in her favour were
consistent with the directions in paragraphs 1, 2 and 4 that the testator''s grand-children, that is, the children of Kannuswami and Chinnaswami
should take an absolute interest in whatever was bequeathed to them; that was the scheme of the will.
In our opinion the word ''shara'' in paragraphs 5 and 6 of the will was intended by the testator only to signify the distinction between the
absolute interest he conferred on one set of legatees and the limited interest he conferred on the other set of legatees, namely, Kannuswami and
Chinnaswami. We are of opinion that the term ''shara'' cannot be expanded to include in it the legatees enumerated in paragraph 3 of the will in the
absence of any specific reference to Arumugham''s wife and children among the legatees either in paragraph 5 or in paragraph 6 of the will.
The learned counsel for the appellants pointed out that there was no specific reference either to the children of Chinnaswami or Kannuswami in
paragraphs 5 and 6 of the will, and that if the application of the term ''shara'' was confined only to the nature of the interest Chinnaswami and
Kannuswami took in the bequest under paragraphs 5 and 6 of the will, the testator should be deemed to have died intestate with reference to the
properties allotted to Chinnaswami and Kannusawmi in paragraphs 5 and 6 of the will after their death. We have already pointed out that we are
not really concerned with the interests, if any, the children of Kannuswami and Chinnaswami could claim in these bequests, under paragraphs 5 and
6 of the will. In -- Gnanambal Ammal Vs. T. Raju Ayyar and Others, , the learned Judges of the Supreme Court observed at p. 108:
A question is sometimes raised as to whether in construing a will the court should lean against intestacy. The desire to avoid intestacy was
considered by the Privy Council in the case referred to above (-- Venkata Narasimha Appa Row v. Parthasarathi Appa Row'', 41 Ind App 51
(B)) as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian Court. It seems that a
presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; but it can be invoked
only when there is undoubted ambiguity in ascertainment of the intentions of the testator. As Lord Justice Romer observed in -- ''In re Edwards:
Jones v. Jones'', 1906 1 Ch 570 (C), ''It cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words
according to their plain meaning''.
The expression ''shara'' (translated correctly as ""terms"") in paragraph 5 and paragraph 6 of the will obviously referred to the enjoyment pro
vided for by paragraphs 5 and 6 of the will. As we have already pointed out, while it was only a restricted right of enjoyment that the testator
conferred on two of his sons, Kannuswami and Chinnaswami, in paragraphs 1, 2 and 4 of the will it was an absolute right in the legacy that he con
ferred on the legatees enumerated in paragraph 3 of the will. Ponnammal''s sons were also legatees under paragraph 6 of the will, and obviously
neither the ''shara'' construed independent of en joyment nor the nature of the enjoyment specified in paragraphs 1 to 4 of the will could apply to
define the nature of the interest Ponnammal''s sons took in the legacy of a fourth share of item 4. With reference to Arumugam again, the right of
enjoyment he could claim under the terms of para graph 3 of the will was an unrestricted absolute interest.
There seems to us to be no justification for importing into the word ''shara'', as qualifying that right of enjoyment, the liability to share the legacy
with the other legatees enumerated in paragraph 3 of the will. We are unable to accept the contention of the learned advocate for the appellants
that when the testator specified Arumugam in paragraphs 5 and 6 of the will, what the testator intended was that the legacy should be to the
individual members of Arumugam''s family in equal shares. There can be no question of any intestacy with reference to the legacy to Arumugam,
whatever might be the position with reference to the legacy to Chinnaswami and Kannuswami.
No doubt, it is a consistent construction that should be placed on all the terms of a will, but the plea that the presumption should be against
intestacy has been based in this case not on the terms of the will on which the parties based their claims but the terms of the will applicable to
others whose rights we are not called upon to determine in these suits; and the presumption against intestacy in the construction of a will is certainly
not as absolute as the learned advocate for the appellants claimed it to be. No more than the learned Judges of the Supreme Court in Gnanambal
Ammal Vs. T. Raju Ayyar and Others, are we called upon to pronounce with reference to the facts involved in this case any opinion on this
question of presumption against intestacy.
The learned advocate for the appellants referred to -- ''Ross v. Ross'', (1845) 63 ER 730 (D), in support of his contention, that paragraphs 5
and 6 of the will should be construed to mean that the legacy was to Arumugam, his wife and children. The danger of construing one will with
reference to the clauses of another will and on the basis of the English decisions and English law was explained by the learned Judges of the
Supreme Court in Gnanambal Ammal Vs. T. Raju Ayyar and Others, , and it is not therefore really necessary to consider further whether
paragraphs 5 and 6, the terms of which were certainly not in ''pari materia'' with the will the learned Judges had to construe in (1845) 63 ER 730
(D), should be construed on identical lines.
In our opinion Arumugam''s wife and children took no interest either in item 3 or in item 4 under the terms of Appavoo''s will.
Item 1: The two questions that arise for determination in these appeals with reference to this item are (1) Was the sale of item 1 under Ex. D-3
void u/s 23 of the Contract Act? and (2) is the claim or any portion thereof barred by the law of limitation?
Ex. D-3 was executed on 16-4-1931 during the pendency of the criminal case against Arumugam. Ex. D-3 was registered on 21-4-1931 and
on the same day the criminal proceedings against Arumugam terminated u/s 345, Cr. P. C. after the court had permitted the complainant
Ramaswami Aiyar to compound the offence. The offence with which Arumugam had been charged was one punishable u/s 420, I. P. C. In
paragraph 12 of her plaint Meenakshi Sundarammal averred:
The sale deed (which) is void was taken to stifle criminal prosecution and is opposed to public policy.
When she gave evidence as P. W. 1 Meenakshi Sundarammal swore:
The Circle Inspector of Police Anantarama Aiyar and N. Ramaswami Aiyar said my husband would be sent to jail and threatened us. So
threatening us these two and defendants 1 to 3 got my signature to the sale deed. At that time my husband and I were much afraid.
The oral evidence for the defendants was that of defendants 1 and 2 examined as D. Ws. 2 and 1 respectively, arid that of Ramaswami Aiyar, who
was examined on commission. His deposition was marked as Ex. D-22. Their evidence was that Ramaswami Aiyar had nothing to do with the
transactions that culminated in the execution of Ex. D-3. Arumugam and his wife entered into the contract of sale with defendants 1 to 3, and
independent of that Arumugam approached Ramaswami Aiyar with an offer to pay Rs. 6000 which Ramaswami Aiyar agreed to accept. After
accepting that amount, he sought the permission of the court to compound the offence. The court granted the permission and Arumugam was
acquitted u/s 345, Cr. P. C. We see no reason to differ from the learned Subordinate Judge who accepted the oral evidence of Ramaswami Aiyar,
D. W. 1 and D. W. 2 in preference to that of the self-interested testimony of Meenakshi Sundarammal as P. W. 1.
It is against this background we have to consider the question, whether the sale under Ex. D-3 fell within the mischief of Section 23 of the
Contract Act, that is, whether it was a contract to terminate the criminal proceedings otherwise than in accordance with law.
In -- AIR 1941 95 (Privy Council) the facts were as follows: Kalidas and his son Jitendra were indebted to the bank. On 1-4-1925 the bank
launched criminal proceedings against Kalidas, his son and others charging them with having committed offences punishable under Sections 120-B,
420, 408 and 406, I. P. C. Of these, the offence punishable u/s 420, I. P. C. alone was compoundable with the permission of the court u/s 345,
Cr. P. C. While these proceedings were pending in the court of the Magistrate on 27-6-1925, the bank obtained a mortgage for Rs. 30000 from
Kalidasa''s wife. Rs. 25000 of this went in part liquidation of the debt due to the bank from Kalidas. On 29-6-1925 on a petition presented by the
bank the Magistrate ordered;
The prosecution puts in a petition saying that under circumstances stated therein they do not offer any evidence. The accused is discharged u/s
253, Cr. P. C.
In upholding the defence of the mortgagor, that the contract of mortgage came within the mischief of Section 23 of the Contract Act, their
Lordships of the Privy Council observed at p. 96: ""The law in regard to agreements to stifle prosecutions is reasonably clear. The Board were
referred to the various considerations set out at length in the well known judgment of Vaughan Williams J. in ''Jones v. Merionethshire Permanent
Benefit Building Society'', 1891 2 Ch 587 (F). The learned Judge is in fact doing nothing more than considering the elements that go to the making
of a simple contract, for it is of the essence of the defence that the defendant should establish a contract whereby the proposed or actual
prosecutor agrees as part of the consideration received or to be received by him either not to bring or to discontinue criminal proceedings for some
alleged offence . . .
Proof that there has actually been a crime committed is obviously unnecessary. But it is also of course necessary that each party should understand
that the one is making his promise in exchange or part exchange for the promise of the other not to prosecute or continue prosecuting. In all
criminal cases reparation where possible is the duty of the offender and is to be encouraged. It would be a public mischief if on reparation being
made or promised by the offender or his friends or relatives, mercy shown by the injured party should be used as a pretext for avoiding the
reparation promised. On the other hand, to insist on reparation as a consideration for a promise to abandon criminal proceedings is a serious abuse
of the right to private prosecution. The citizen who proposes to vindicate the criminal law must do so wholeheartedly in the interests of justice, and
must not seek his own advantage."" (24) In -- ''Jones v. Merionethshire Permanent Benefit - Building Society'', 1892 1 Ch 173 (G), Lindley L. J.
pointed out:
In order to amount to a defence on the ground of illegality there must be an agreement not to prosecute an agreement as it is called to stifle a
prosecution.
Bowen L. J. observed:
. . . . the law certainly is not anxious to discourage reparation. But you must come back after reparation made to the one dominant test in each
case. It is a circumstance which may be lawfully taken into consideration that the offender has done his best himself or with the assistance of his
friends to make good his wrong, But the test is what is the moral duty of the person who has been injured to himself and others. He must make no
bargain about that. If reparation takes the form of a bargain, then to my mind the bargain is one which the court will not enforce.
In -- ''Veerayya v. Sobhanadri'', AIR 1936 Mad 656 (H), Venkataramana Rao J. laid down:
But I think the true rule is that where there is an existing debt or an obligation a creditor is not precluded from taking any security therefore by
threat of a criminal prosecution and the security is not vitiated by the fact that he was induced to abstain from prosecuting the debtor. But if it is a
part of the bargain that the creditor should not prosecute the debtor, the security taken for the debt will be invalid.
Possibly, with reference to the proved facts in a given case, it may sometime be difficult to draw the line between the acceptance of reparation
by the party aggrieved and an agreement not to prosecute the offender. Nonetheless, it is a real distinction. It is where an injured party forgets his
duty to the State and exceeds his right of accepting reparation for the wrong done to him and enters the domain prohibited by law by agreeing to
terminate the proceedings in a criminal court in a manner otherwise than in accordance with law, that Section 23 of the Contract Act applies and
invalidates such an agreement. The agreement itself being unlawful, any consideration for such an agreement paid by the offender is also unlawful.
When a person commits an offence or is even charged with having committed an offence, there are two aspects to be considered, the wrong done
to the citizen, the injured party and the wrong done to the State. The offence is punishable not by the citizen but by the State under the criminal law
of the land. Obviously, an injured party cannot usurp the functions of the State to terminate by agreement with the offender proceedings in a
criminal court. That would be in derogation of the duty the injured party as a citizen of the State owes to the State--to help the State in every way
he lawfully could to punish the offender for the offence he had committed.
It should, however, be remembered that the observations their Lordships of the Privy Council made in AIR 1941 95 (Privy Council) , were
with reference to offences not compoundable or compoundable only with the permission of a Court. It is not termination of every criminal
proceeding by agreement between the injured party and the offender that will fall within the scope of Section 23 of the Contract Act as opposed to
public policy. Section 345, Criminal P. C., permits an injured person to compound specified offences. It may be that that compounding is effected
after reparation is made for the wrong done to the injured party. But it is not the acceptance of that reparation that invalidates compounding even
of the offences specified in Section 345, Criminal P. C. The right Section 345, Criminal P.C. gives the injured party to compound an offence is
really independent of any prior acceptance of reparation or prior acceptance of an agreement to make reparation.
Section 345, Criminal P. C. allows one class of offences to be compounded by the injured party without reference to the Court or to anyone else.
Another class of cases--Section 345, Criminal P. C., allows the injured party to compound with the offender after obtaining the sanction of the
court. It is not difficult to understand the basis of the classification of offences compoundable, offences compoundable with the sanction of the
court and offences not compoundable at all. It is the degree of wrong done to the State by the commission of the offence that appears to be the
basis for this distinction. Petty wrongs done to citizens, which do not seriously affect the interests of the community or the State are compoundable
by the injured party without any reference to the State. The next class of offences, where sanction of court is necessary to compound, consists of
cases where the injury to the State is recognised, but the State considers it expedient in given cases on the basis of the discretion exercised by a
judicial authority to permit the aggrieved party to compound the offence.
Compounding of offences u/s 345, Criminal P. C., terminates the criminal proceedings against the offender, and the offender is entitled to an
acquittal. Where the law allows an injured person to compound an offence without reference to the State or the court and that compounding
terminates the criminal proceedings against the offender, such a termination cannot be called unlawful. What the law allows cannot be opposed to
public policy within the meaning of Section 23 of the Contract Act. Similarly, where the law allows an injured person to compound an offence after
obtaining the sanction of the court, and after the sanction of the court the criminal proceedings terminate with the acquittal of the offender u/s 345,
Criminal P. C. there can be no question of such compounding authorised by law being opposed to public policy within the meaning of Section 23
of the Contract Act. It is only where recourse is not had to Section 345, Criminal P. C. and the agreement between the injured person and the
offender is to terminate the criminal proceedings against the offender otherwise than in accordance with Section 345, Criminal P. C. that the
agreement, would fall within the mischief of Section 23 Indian Contract Act. What Section 345, Criminal P. C. permits cannot be viewed as
unlawful or as opposed to public policy.
It is with reference to these principles that we have to decide the question at issue, whether Ex. D. 3 is void u/s 23 of the Contract Act. At
least two factors have to be proved before the requirements of Section 23 can be satisfied by Meenakshi Sundarammal, who seeks to avoid the
sale under Ex. D. 3: (1) that the termination of the criminal case against Arumugam was unlawful, and (2) that the sale under Ex. D. 3 constituted
the consideration or part consideration for the agreement between Ramaswami Aiyar and Arumugam to terminate the criminal case then pending
against Arumugam. Neither of these conditions was satisfied.
As we have already pointed out, Ramaswami Aiyar obtained the permission of the court, u/s 345, Criminal P.C. and compunded the offence.
Arumugam was acquitted. What Ramaswami Aiyar did was therefore perfectly lawful and he did not overstep his legal obligations, as a citizen, to
the State by the acquittal of Arumugam. The learned counsel for the appellants urged that, even though componding the offence punishable u/s
420, I. P. C. with the permission of the court which was sought and obtained might be lawful, the agreement that preceded that compounding on
21-4-1931 would be unlawful and would bring the transaction evidenced by Ex. D. 3 within the mischief of Section 23 of the Contract Act. We
are unable to accept that contention. If performance of an agreement to compound an offence is lawful u/s 345, Criminal P. C. the agreement itself
can never become unlawful.
On the facts proved in this case, it seems to us to be clear that the sale under Ex. D. 3 was no part of the agreement between Ramaswami
Aiyar and Arumugam to compound the offence and to terminate the criminal proceedings against Arumugam. As we have already pointed out, we
have no hesitation in accepting the testimony of Ramaswami Aiyar and that of D. Ws. 1 and 2 on this point. The agreement of sale was between
defendants 1 to 3, principally defendant 2, on the one hand, and Arumugam and his wife on the other. Ramaswami Aiyar played no part in that.
The agreement to compound the offence was between Ramaswami Aiyar and Arumugam, with which defendants 1 to 3, the vendees under Ex. D.
3, had nothing to do. They were really independent transactions. That was what the evidence of Ramaswami Aiyar and D. Ws. 1 and 2
established. Only had the sale under Ex. D. 3 been a part of the bargain between Ramaswami Aiyar and Arumugam could any question of invoking
Section 23 of the Contract Act arise. It was not part of that bargain between Ramaswami Aiyar and Arumugam.
We hold that the sale under Ex. D. 3 was lawful and was not void. Meenakshi Sundarammal having been a party to the sale under Ex. D. 3 is
bound by it and she cannot avoid it.
Meenakshi Sundarammal, however, could claim not only a fourth share in item 1 as legatee under Appavoo''s will Ex. P. 1; she could also
claim that she inherited Kanakavalli''s l/4th share as her heir. The bequest of a fourth share to Kanakavalli was independent of that of Meenakshi
Sundarammal. Kanakavalli was a minor on the date of Ex. D. 3. The learned counsel for the appellants urged that the recitals of Ex. D. 3 should
make it clear that Kanakavalli was not made a party to the sale at all even as a minor, represented by her father as her guardian. We are unable to
accept that contention. No doubt, even in Ex. D. 3, the recitals were that Arumugam'' alone was entitled to the whole of item 1. The recitals also
made it clear that to satisfy the vendees, Arumugam''s wife and their two children were also made parties to the transaction, so that whatever
Interests they could claim in item 1 could pass to the vendees. Kanakavalli''s position therefore was that of a vendor. As she was a minor she was
represented by her father and guardian Arumugam in that transaction.
No question of limitation arises with reference to Meenakshi Sundarammal''s 1/4th share in item 1, since she could not avoid the sale of that
interest under Ex. D. 3. The question therefore is, is the claim for Kanakavalli''s fourth share, which, but for the sale, Meenakshi Sundarammal
would have inherited barred by the Jaw of limitation? Had Kanakavalli lived and filed a suit to avoid the sale of her fourth share in item 1, & the
suit had been brought within the period of limitation, there would have been no defence to such a claim. There was nothing to show that the sale of
Kanakavalli''s share was for purposes binding on her.
Since Kanakavalli was a party ''eo nomine'' to the contract of sale evidenced by Ex. D. 3, Article 44 of the Limitation Act would have applied, had
Kanakavalli herself brought a suit to avoid Ex. D. 3. That precisely is the position of her heir, Meenakshi Sundarammal. There can be no question
of Meenakshi Sundarammal invoking, Section 6(1) or Section 6(2) of the Limitation Act, because the starting period for reckoning the period of
three years For which Article 44 provided was the date on which Kanakavalli would have attained majority had she lived. Kanakavalli died in
1938 before she was 18. Even u/s 6(3) of the Limitation Act, the period of three years prescribed by Article 44 expired long before the suit was
instituted. Meenakshi Sundarammal''s claim for the fourth share of Kanakavalli must be rejected as barred by the law of limitation.
Shanmuga Sundarammal''s claims also to her fourth share in item 1 will have to be rejected as barred by the law of limitation. She was also a
party ''eo nomine'' to the contract of sale, Ex. D. 3, and her suit was filed more than three years after she attained majority. Though the sale itself
could not have been valid, it was not void but was only voidable at the instance of Shanmugha Sundarammal. Article 44 should apply and her claim
should be rejected.
We have discussed the claim against defendants 1, 2 and 3, the vendees under Ex. D. 3. Defendants 4 and 19 to 22, to whom defendants El
to 3 sold a portion of item 1 were impleaded by an amendment of the plaint only on 10-3-1945.
Item 2; In item 2 also Meenakshi Sundarammal and her two daughters had each a fourth share under the terms of paragraph 3 of Appavoo''s
will Ex. P. 1. Item 2 was sold under-Ex. P. 3 on 26-11-1932. To this transaction Meenakshi Sundarammal and her three daughters Kanakavalli,
Shanmugha Sundarammal and Baby were made parties ''eo nomine''. The children were minors and were represented by their father as guardian.
The claim of Meenakshi Sundarammal in paragraph 15 of her plaint was that it was a fraudulent document not intended to be acted upon. That it
was acted upon and defendant 7 took possession was admitted in paragraph 15 itself, Meenakshi Sundarammal averred that it was in November
1932 that defendant 7 obtained possession. Meenakshi Sundarammal established no grounds at all for avoiding the sale of her share in item 2
evidenced by Ex. P. 3 to which she was a party.
No doubt, the sale of the shares of the minors, Kanakavalli and Shanmugha Sundarammal, was not for their benefit or necessity. To a claim by
them or on their behalf to set aside the sale of their shares, Article 44 of the Limitation Act would apply and the suits of both Meenakshi
Sundarammal and Shanmugha Sundarammal in 1943 were barred.
Items 3 and 4: The claims of Meenakshi Sundarammal and Shanmugha Sundarammal to a share in items 3 and 4 can be dealt with together.
We have already pointed out that neither Meenakshi Sundarammal nor Shanmugha Sundarammal obtained a share in either of these two items
as legacy under the terms of Appavoo''s will Ex. P. 1. On that ground alone their claims have to be dismissed.
Item 3, which really means a third share in that item, was sold by Arumugam alone on 7-2-1930. The averment in paragraph 9 of Shanmuga
Sundarammal''s plaint in O. S. No. 24 of 1945, that the sale was on 26-11-1932 is obviously wrong. It was the second item that was sold on 26-
11-1932 under Ex. P. 3. Since neither Meenakshi Sundarammal nor Shanmugha Sundarammal was a party to the sale of item 3 on 7-2-1930,
either was bound to have the sale set aside, if really she had acquired an interest in that item under the terms of Appavoo''s will. Our finding is that
they did not acquire any interest, Even had they acquired -such an interest, their claims would be barred by the law of limitation.
In paragraph 17 of Meenakshi Sundarammal''s plaint in O. S. No. 23 of 1945 it was averred that the vendees obtained possession only in 1933.
When Meenakshi Sundarammal gave evidence as P. W. 1, she swore that the vendees were put in possession only two years after the date of Ex.
P. 3, that is, sometime towards the end of 1934. That statement was uncorroborated and as it was at variance with her plea in paragraph 17 of her
plaint, it deserved no credence. It was true that the trial proceeded ''ex parte'' against the eighth defendant; but in the written statement that he filed
he pleaded that the vendee was in possession from the date of the sale, that is, 7-2-1930. Since the case pleaded was one of possession and
dispossession, Article 142 of the Limitation Act would apply and the suit filed more than 12 years from the date of the sale, under which
apparently possession passed, is barred by limitation.
Appavoo, it should be remembered, was entitled to a 7/8th share in item 4, and under the terms of his will Arumugam alone got a fourth share
of Appavoo''s interests. The learned Sub-ordinate Judge appears to have proceeded on the erroneous assumption, that Appavoo had only a 3/8th
share in the village, and the sale of that, as evidenced by Ex. D.12 for a debt due from Appavoo must conclude the rights of the parties. The
remaining 4/8ths, it will be remembered was sold only under Ex. P. 4 in 1935. To that transaction neither Meenakshi Sundarammal nor
Kanakavalli, nor Shanmugha Sundarammal were parties. But then as we have already found, they acquired no interest in item 4 as legatees under
the terms of paragraph 6 of Appavoo''s will.
Even had Meenakshi Sundarammal, Kanakavalli and Shanmugha Sundarammal acquired any rights as legatees in item 4, their claim to recover
possession of their shares in these items of immove-able properties will have to be rejected as barred, by the law of limitation.
We are unable to accept the contention of the learned counsel for the 18th defendant who is now in possession of the whole of item 4, that the
suit is barred under Article 123 of the Limitation Act, the suit having been filed more than 12 years from the date when the legacy became payable
--the legacy payable on the death of Appavoo. In -- AIR 1932 81 (Privy Council) their Lordships of the Privy Council laid down:
It was not intended by the judgment of the Board in -- ''Maung Tun Tha v. Ma Thit'', AIR 1916 PC 145 (J), to overrule the series of decisions in
India that Article 123 applies only where the suit is against an executor or administrator or some person legally charged with the duty of distributing
the estate.
The learned counsel for the 18th defendant referred to -- '' Sri Nathji and Others Vs. Mt. Panna Kunwar, , which explained the scope of the rule
in AIR 1932 81 (Privy Council) . But the principle applied in Sri Nathji and Others Vs. Mt. Panna Kunwar, was the same. Keshab Deo in that
case was charged with the duty of paying the legacy to Mst. Panna Kunwar and that obligation devolved upon Thakur Srinathji, the universal
donee under Keshab Deo''s will. The learned Judges observed at p. 242; ""We are therefore of opinion that the case before us which is one for the
recovery of a legacy by the respondent from persons who are in possession of the estate and who are legally bound to pay the same is governed
by Article 123 of the Limitation Act.
In -- ''Rajah Parthasarathi Appa Rao v. Rajah Venkatadri Appa Rao'', AIR 1922 Mad 457 (L) it was held that Article 123 of the Limitation Act
applied to suits for legacies against any person rightly or wrongly in possession of the estate of the testator; and under such circumstances that he
was bound to deal with it as the estate of the deceased testator. That decision was confirmed on appeal by the Privy Council, where however, it
appears to have been conceded that Article 123 applied. It was not mere possession of the estate that attracted Article 123 but possession with a
duty to distribute the legacy. It cannot be claimed that either the 18th defendant, who is now in possession of Appavoo''s interest in item 4, or any
of the other defendants in these two suits could represent the estate of Appavoo. On none of them devolved any duty to distribute the legacies as
per the terms of Appavoo''s will. Article 123 of the Limitation Act cannot therefore apply. Nor can the claims be rejected on the ground that they
were made more than 12 years after the legacies became payable immediately after the death of the testator Appavoo.
In Rustomji''s Law of Limitation, 5th Edn., Vol. 2, at p. 1058, the learned author Observed:
In case of a legacy of Immovable property where Article 123 is not (under the circumstances) applicable...... the suit may fall under Article 140
(as a suit by a devisee).
There is no scope, however, in these suits for invoking Article 140 either, because the case pleaded by Meenakshi Sundarammal and Shanmuga
Sundarammal was one of possession and dispossession, that is, that they were in enjoyment of the legacies until they lost possession. It is on that
basis the period of limitation will have to be computed under Article 142 of the Limitation Act The question is from what point of time should the
period of 12 years be computed.
The learned advocate for the appellants contended that the suits being filed within 12 years from the date of Ex. P. 4 were within time. We are
now considering the position on the footing that Meenakshi Sundarammal, Kanakavalli and Shanmugha Sundarammal were legatees along with
Arumugam and acquired their defined fractional shares in item 4 under Appavoo''s will. There was no specific evidence as to who entered upon
possession of Appavoo''s interest in item 4 immediately after his death. In Ex. P. 4 the averment was that the vendors were in possession of the
4/8th share till the date of sale. Arumugam''s wife and children, lived with him, but Arumugam''s wife admitted at one stage when she was,, cross-
examined that she and her children separated from her husband soon after the mortgage of item 1 to Ramaswami Aiyar in 1924, which would
imply that they were not even in constructive possession of any of the assets-of Appavoo after they separated from Arumugam.
Even if they had entered into possession of their legacies along with Arumugam or were at least in constructive possession of the same while they
lived with Arumugam, even that constructive possession was lost when they left Arumugam. It should also be noticed that Arumugam''s wife and
children were not brought on record as persons who also represented the estate of Appavoo in any of the three suits in which this item was
involved, O. S. No. 342 of 1920; O. S. No. 49 of 1929 and O. S. No. 322 of 1921. It would, therefore, appear that Arumugam''s wife and
children were out of possession at least from 1924. The claim to recover pos session of their alleged shares in item 4 is there fore barred.
The learned counsel for the appellants contended that on an examination of Exs. D. 5 and D. 6 which defined the share of Appavoo in item 4,
and an examination of Exs. D. 12 and P. 4 under which Appavoo''s interests were conveyed to the respective vendees, it could be found that there
was still an extent of land in which Appavoo''s legal representatives could claim the kudiwaram interest and a further extent in which they could
claim melwaram interest. Such a case was never pleaded and was not the subject-matter of any issue. It is not a pure question of law that the
appellants could be allowed to raise at this stage in appeal. There can be no question of attacking the validity of the sale evidenced by Ex. D. 12. It
was to discharge an obligation incurred by Appavoo himself. The only grounds on which the validity of Ex. P. 4 was attacked were that the
transaction was sham and nominal and that in any event it did not convey to the vendee the interests of Meenakshi Sundarammal and Shanmuga
Sundarammal who were not parties to Ex. P. 4, Neither of these grounds was established. The appellants cannot be permitted to advance a new
ground at this stage.
We hold that the learned Subordinate Judge was right in negativing the claims of both Meenakshi Sundarammal and Shanmuga Sundarammal;
the decrees of hte lower court are confirmed, and the appeals are dismissed with costs, one set to be divided between the contesting respondents
in two groups equally.
Meenakshi Sundarammal and Shanmuga Sundarammal who were permitted to appeal ''in forma pauperis'' should each pay the court-fee
payable on the memorandum of appeal presented by her.