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. Rahmat 30 Ind. Cas. 138 and Mottai Reddy v. Thanappa Reddy 37 M. 385.
4. An agreement the consideration of which is the compounding of a compoundable offence is not forbidden by law and is valid: Amirkhan v. Amirjan 3 C.W.N. 5. But an agreement to compound a non-compoundable offence is void in law: Nujebar Rahman v. Muktashed Husain 16 C.W.N. 854 in which the English cases are considered and the old case of Sheikh Nubbee Buksh v. Bibee Hingon 8 W.R. 412 is dissented from. Of the two cases cited for the respondent-father in Emperor v. Rahmat 37 A. 419 13 A.L.J. 630 and Mottai Reddy v. Thanappa Reddy 26 Ind. Cas. 181 the injured person in both the cases had apparently died at the time of agreement. The Allahabad case was a Criminal Appeal against the order of the Sessions Judge rejecting the application for the prosecution of a charge under Sections 302 and 304, Indian Penal Code, and allowing the offences to be compounded. The present question, therefore, did not arise in that case. The reasoning of the Single Judge in the Madras case, if I may say so with respect, is not clear when he says (page 386 Page of 37 M-[Ed.]), 'the offence could not have been legally compromised except with the consent of the person to whom grievous hurt was caused and the agreement to compound was, therefore, one prohibited by law'. With all respect, want of authority because of the absence or death of the injured person who alone in law has authority is one thing; a prohibition by law as in the case of non-compoundable cases is quite another. In the present case it is not alleged that there has been any attempt or threat to resuscitate the prosecution for the grievous hurt to the appellant's wife. On the contrary, the order of acquittal stands and presumably bars a fresh complaint. In regard to the prosecution the consideration has been carried out, and the fact that the application to compound was made not expressly and formally by the injured woman, but by her husband the appellant with her alleged consent was never impugned in the Criminal Court and in not impugned now. That single fact cannot cause such a consideration to be forbidden by law within the meaning of a, 23 of the Indian Contract Act, and the agreement to be void. The opposite view amounts in effect to this. At the time of the complaint and the agreement to compound, the father, sister-in-law and the Criminal Court assumed the consent of the wife and acted upon it, and as far as the present appellant was concerned the agreement was carried out and an acquittal recorded. Having obtained such performance the very parties who were benefited by it now seck to impugn the agreement on a ground never urged before. The trial Court was, in my opinion, right and the lower Appellate Court was wrong in holding that the consideration was not illegal and the agreement not void merely because of the absence of the signature of the wife.
5. In regard to registration, as the lower Appellate Court observed, the son admittedly has been occupying the house since the date of the agreement and can rely on the doctrine of part performance laid down by the Privy Council in Mahomed Musa v. Aghore Kumar Ganguli 17 Bom. L.R. 420 (1915) M.W.N. 621 and by this Court in Bapu Apaji Potdar v. Kashinath Sadoba 19 Bom. L.R. 100 to defeat the claim of the father and to evict him.
6. Both the appeals are allowed. The decrees of the lower Appellate Court are set aside and the decrees of the trial Court confirmed.
7. In Appeal No. 266 of 1927 the plaintiff-respondent will pay the defendant appellant's costs throughout.
8. In Appeal No. 215 of 1927, the suit by the son was for a declaration of his right to live which he could have obtained in the suit by the father and also for obtaining a pacca registered document from the father and the sister-in-law for which there is no provision in the agreement considered above and to which, therefore, he was rightly held not entitled. Upon the whole, the fairest order appears to be that the appellant should obtain his costs in this Court from the respondent and that each party should pay its own costs in the two lower Courts.