1. 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.
2. 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 :
'1. 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 . . .
2. My eldest son and last son (Kannuswamiand Chinnaswami) shall improve the land of theextent of about 4 acres, which is in Paliyar . .and enjoy the income derived therefrom. Theyshall have no right whatever either to mortgageit usufructuarily or to sell it. Their 'Pillaigal'alone shall have full rights to it after theyattain majority.
3. 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).
4. . . . 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.
5. 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).
6. 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.'
3. 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 under Section 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 under Section 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 under Section 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 under Section 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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 claimed 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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 -- 'Gnambal Ammal v. Raju Ayyar', : 1SCR949 (A), 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'.'
17. The expression 'shara' (translated correctlyas 'terms') in paragraph 5 and paragraph 6 ofthe will obviously referred to the enjoyment provided for by paragraphs 5 and 6 of the will. Aswe have already pointed out, while it was onlya restricted right of enjoyment that the testatorconferred on two of his sons, Kannuswami andChinnaswami, in paragraphs 1, 2 and 4 of the willit was an absolute right in the legacy that he conferred on the legatees enumerated in paragraph 3of the will. Ponnammal's sons were also legateesunder paragraph 6 of the will, and obviouslyneither the 'shara' construed independent of enjoyment nor the nature of the enjoyment specifiedin paragraphs 1 to 4 of the will could apply todefine the nature of the interest Ponnammal's sonstook in the legacy of a fourth share of item 4.With reference to Arumugam again, the right ofenjoyment he could claim under the terms of paragraph 3 of the will was an unrestricted absoluteinterest.
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 : 1SCR949 (A), are we called upon to pronounce with reference to the facts involved in this case any opinion on this question of presumption against intestacy.
18. 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 : 1SCR949 (A), 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.
19. 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.
20. 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 under Section 23 of the Contract Act? and (2) is the claim or any portion thereof barred by the law of limitation?
21. 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 under Section 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 under Section 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 under Section 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.
22. 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.
23. In -- 'Bhowanipur Banking Corporation Ltd. v. Durgesh Nandini Dassi , 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 under Section 420, I. P. C. alone was compoundable with the permission of the court under Section 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 under Section 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 backafter reparation made to the one dominant testin each case. It is a circumstance which maybe lawfully taken into consideration that theoffender has done his best himself or with theassistance of his friends to make good his wrong,But the test is what is the moral duty of theperson who has been injured to himself andothers. He must make no bargain about that.If reparation takes the form of a bargain, thento my mind the bargain is one which the courtwill 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 therefor 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.'
25. 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 evencharged with having committed an offence, thereare two aspects to be considered, the wrong doneto the citizen, the injured party and the wrong doneto the State. The offence is punishable not by thecitizen but by the State under the criminal law ofthe land. Obviously, an injured party cannot usurpthe functions of the State to terminate by agreementwith 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 theState--to help the State in every way he lawfullycould to punish the offender for the offence he hadcommitted.
26. It should, however, be remembered that the observations their Lordships of the Privy Council made in , 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 under Section 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 under Section 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.
27. It is with reference to these principles that we have to decide the question at issue, whether Ex. D. 3 is void under Section 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.
28. As we have already pointed out, Ramaswami Aiyar obtained the permission of the court, under Section 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 under Section 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 under Section 345, Criminal P. C. the agreement itself can never become unlawful.
29. 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.
30. 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.
31. 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.
32. 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 under Section 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.
33. 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.
34. 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.
35. 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.
36. 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.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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 -- 'Ghulam Muhammad v. Ghulam Hussain , 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 v. Patina Kunwar : AIR1935All239 , which explained the scope of the rule in . But the principle applied in : AIR1935All239 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.
43. In Rustomji's Law of Limitation, 5th Edn., Vol. 2, at p. 1058, the learned author Observed:
'In case of a legacy of immoveable 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.
44. 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 theirlegacies along with Arumugam or were at least inconstructive possession of the same while they livedwith Arumugam, even that constructive possessionwas lost when they left Arumugam. It should alsobe noticed that Arumugam's wife and children werenot brought on record as persons who also represented the estate of Appavoo in any of the three suitsin which this item was involved, O. S. No. 342of 1920; O. S. No. 49 of 1929 and O. S. No. 322of 1921. It would, therefore, appear that Arumugam's wife and children were out of possession at least from 1924. The claim to recover possession of their alleged shares in item 4 is therefore barred.
45. 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.
46. 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.
47. 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.