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Sm. Sumitra Devi Agarwalla Vs. Sm. Sulekha Kundu and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKolkata High Court
Decided On
Case NumberF.M.A.T. No. 3126 of 1975
Judge
Reported inAIR1976Cal196,(1976)1CompLJ333(Cal),80CWN365
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 23, Rule 3; ;Contract Act, 1872 - Section 23; ;Indian Penal Code (IPC) - Sections 406 and 420
AppellantSm. Sumitra Devi Agarwalla
RespondentSm. Sulekha Kundu and anr.
Appellant AdvocateBankim Chandra Dutt and ;Amar Nath Banerjee, Advs.
Respondent AdvocateAsoke Lahiry and ;K.B. Kanjilal, Advs.
DispositionAppeal dismissed
Cases ReferredDeb Kumar v. Anath Bandhu
Excerpt:
- m.m. dutt, j. 1. this appeal is at the instance of the plaintiff and it is directed against the order dated october 1, 1975 of the learned judge, 8th bench,city civil court, calcutta, dismissing the plaintiff's application for recording a compromise in adjustment of the suit under order 23, rule 3 of the code of civil procedure.2. the suit was instituted by the plaintiff for specific performance of a contract of lease dated november 2, 1973, for khas possession of the suit premises and for a permanent injunction restraining the defendants from letting out the suit premises to any person other than the plaintiff. the suit premises is the first floor of premises no. 310, rabindra sarani, calcutta. it is not, disputed that the defendant no. 1 sm. sulekha kundu is the owner of the said.....
Judgment:

M.M. Dutt, J.

1. This appeal is at the instance of the plaintiff and it is directed against the order dated October 1, 1975 of the learned Judge, 8th Bench,City Civil Court, Calcutta, dismissing the plaintiff's application for recording a compromise in adjustment of the suit under Order 23, Rule 3 of the Code of Civil Procedure.

2. The suit was instituted by the plaintiff for specific performance of a contract of lease dated November 2, 1973, for khas possession of the suit premises and for a permanent injunction restraining the defendants from letting out the suit premises to any person other than the plaintiff. The suit premises is the first floor of premises No. 310, Rabindra Sarani, Calcutta. It is not, disputed that the defendant No. 1 Sm. Sulekha Kundu is the owner of the said premises. The defendant No. 2 Kestodas Kundu is the husband's elder brother of Sulekha Kundu. The plaintiff's cape is that on November 2, 1973, she entered into a contract of lease of the suit premises with the defendants on certain terms and conditions. Pursuant to the said agreement, the plaintiff advanced to the defendant No. 2 as the agent of the defendant No. 1, a total sum of Rs. 16,000 on diverse dates between November 7, 1973 and February 19, 1974 out of the sum of Rs. 20,000 agreed to be paid by the plaintiff under the contract, so as to enable the defendants to complete the renovation of the suit premises. It is alleged that the defendants failed and neglected to deliver possession of the suit premises to the plaintiff even though the plaintiff offered to pay the balance sum of Rs. 4,000. On the aforesaid allegations, the plaintiff has claimed a decree for specific performance of the contract of lease by letting out the suit premises to her at a monthly rental of Rs. 400.

3. The plaintiff also filed an application for temporary injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure praying for restraining the defendants from letting out or parting with the possession of the suit premises to any person other than the plaintiff till the disposal of the suit. Before the application for temporary injunction was disposed of, on January 14, 1975, the plaintiff filed the application under Order 23, Rule 3 inter alia alleging therein that on October 13, 1974, due to the intervention of common friends, the parties settled the disputes between them in the presence of their respective lawyers. The terms of settlement were recorded in writing in the form of a letter addressed by the defendant No. 1 Sulekha Kundu to the plaintiff. The original, and duplicate letters bearing the signatures of the defendant were detained by Shri Sunil Krishna Dutta, Advocate, representing the defendants in the matter. It is alleged that a true copy of the said letter was handed over to the plaintiff through her husband Krishna Kumar Agarwal (hereinafter referred to as Agarwal). A copy of the said letter incorporating the terms of settlement agreed to by the parties has been annexed to the application. It is alleged that the defendants deliberately and with an ulterior motive have backed out from the said terms and are not willing to perform their part of the agreement, though the plaintiff at all material times was and is still ready and willing to abide by the same. Accordingly, it has been prayed by the plaintiff that the terms and conditions referred to in the letter dated October 13, 1974 should be recorded and the suit should be decreed on the said terms.

4. The defendant No. 1 Sulekha Kundu and the defendant No. 2 Kestodas Kundu both opposed the said application under Order 23, Rule 3 by petitions of objection. They have denied the allegations made by the plaintiff in the said application. It has been averred by Sulekha Kundu that she was made to sign the said letter under duress and threat without the knowledge of the contents thereof and without any independent legal advice. It is contended that the said purported agreement is void and not legally enforceable. Further, it is contended that the terms of the said alleged agreement are not lawful. It is also her case that Sunil Krishna 'Dutta, Advocate was never engaged by her and she had no occasion to give any instruction to him. The said Sunil Krishna Dutta was acting on behalf of and represented the defendant No. 2 Kestodas Kundu. She has enumerated the circumstances under which she was compelled to sign the said letter in duplicate containing the terms and conditions of the purported settlement.

5. The learned Judge after considering the evidence and the facts and circumstances of the case has held that the said agreement is in the nature of an executory contract and not a concluded one and, as such, does not come within the purview of Order 23, Rule 3; that the consideration for the agreement was unlawful and opposed to public policy and, con-sequently, the agreement was hit by Section 23 of the Contract Act and that, the agreement was not read over and explainsd to Sulekha Kundu before she put hersignature thereon. It has been held by him that the plaintiff has failed to satisfy the Court that the suit has been wholly or partly adjusted by a lawful agreement or compromise. Upon the aforesaid findings, he has dismissed the application under Order 23, Rule 3. Hence, this appeal,

6. The first question that arises is whether the documents, Exts. 1 and 1 (a) embodying the purported terms of settlement have been executed by the defendant No. 1 Sulekha Kundu under threat and coercion. It has, however, been strenuously urged by Mr. B.C. Dutt, learned Advocate appearing on behalf of the plaintiff-appellant that an enquiry as to whether an agreement in adjustment of the suit is vitiated by fraud, undue influence or coercion does not come within the purview of the provision of Order 23, Rule 3. In order to consider this contention, we may refer to the provision of Order 23, Rule 3 which provides as follows:

'Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.'

Mr. Dutt has placed before us a number of decisions of different High Courts in support of his contention. The first of such decisions on which reliance has been placed by him is a Bench Decision of the Allahabad High Court consisting of Sulaiman and Kendall JJ. in Quadri Jahen Begum v. Fazal Ahmad, ILR 50 All 748 = (AIR 1928 All 494). In that case, it has been observed as follows;

'In our opinion the word 'lawful' in Order XXIII, Rule 3, does not merely mean binding or enforceable. A contract which is brought about either by undue influence, misrepresentation or fraud is, under Sections 19 and 19-A of the Indian Contract Act, merely avoidable and not absolutely illegal or unlawful. Section 23 of the Act indicates when the consideration or object of an agreement is unlawful. These are cases where it is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to any person or property, or where the court regards it as immoral oropposed to public policy. We think that the word 'lawful' in Order XXIII, Rule 3, refers to agreements which in their very terms or nature are not 'unlawful', and may therefore include agreements which are avoidable at the option of one of the parties thereto because they have been brought about by undue influence, coercion or fraud.'

It has been further observed that it is possible to take the view that, independently of Order XXIII, Rule 3, the Court has inherent jurisdiction under Section 151 of the Cede to refuse to record a compromise which has been brought about by undue influence.

7. The above principles of law as laid down by Sulaiman and Kendall, JJ. in the case referred to above has been accepted by Kania J. (as he then was) in Western Electric Co. Ltd. v. Kailas Chand, AIR 1940 Bom 60 with certain reservations, namely, that the term 'lawful agreement' as used under Order XXIII, Rule 3, excludes not only unlawful agreements, that is, the object or consideration for which is unlawful as defined in the Contract Act, but all agreements which on the face of them are void and therefore will not be enforced by the Court. Those principles have been followed by the Allahabad High Court in Hussain Yar Beg v Radha Kishan, ILR 57 All 426 = (AIR 1935 All 137), Laraiti v. Shyam Sunder Lal, AIR 1932 All 478 and Ram Asrey v. Rameshwar Prasad, : AIR1961All529 , by the Madras High Court in Kuppuswami Reddi v. Pavanambal, : AIR1950Mad728 , by the Kerala High Court in Krishnan Nair v. Rayarappan Nair, 0043/1959 : AIR1959Ker130 and by the Rajas than High Court in Putto Lal v. Sumer singh ji, . So far as the Calcutta High Court is concerned, Sinha J. (as he then was) agreed with the statement of law as made by Kania J. in the case of Western Electric Co. Ltd. referred to above (See Harbans Singh v. Bawa Singh, : AIR1952Cal73 ). There is no other decision of this Court on the point which is being considered.

8. The Bombay High Court has, however, in a later decision taken a contrary view. In Misrilal Jalamchand v. Sobhachand, AIR 1956 Born 569, Shah J. (as he then was) has expressed the view that when the Court is required to satisfy itself as to the existence of an agreement and is further required to satisfy itself that there is a lawful agreement adjusting the suit the Court must on an applicationto record compromise consider, especially where a plea of undue influence is raised, whether the agreement is not vitiated on any such ground as illegality, fraud, misrepresentation etc. His Lordship overruled the contention that the trial Judge while recording a compromise should not have recorded any finding on the question whether or not there was any undue pressure or undue influence as set up by a party in his application. In this connection, we may refer to a decision of the Privy Council in Seth Kevaldas v. Sakerlal, 28 Cal WN 930 = (AIR 1923 PC 178). In this case, their Lordships of the Privy Council concurred with the views and accepted the finding of the High Court that the adjustment not being a real adjustment after an examination of accounts or ascertainment of facts, was not a bona fide adjustment within the meaning of Order 23, Rule 3, This decision gives an indication that the Court has to consider whether there was a real and bona fide adjustment which may involve an enquiry into the allegation of fraud, undue influence or coercion.

9. It is clear from Order 23, Rule 3 that before the Court considers whether, or not an agreement is lawful, it must be satisfied that there has been an agreement between the parties. An agreement is brought into existence where one party makes an offer and another accepts the same. It is the consensus of minds of two persons in regard to certain matter. Of these two persons if one has not agreed to the term proposed by the other, there is no agreement between them. When the consent of one to the term is obtained by the other by some illegal means, namely, by fraud, coercion or undue influence, it is difficult to hold that the person whose consent has been so obtained has agreed to the term. In two decisions in Mst. Shujarat v. Moharnmad Raza, : AIR1957All450 and Laraiti Devi v. Sia Ram, : AIR1957All820 , the Allahabad High Court has laid down that the Court should be satisfied that the agreement pleaded by any party has in fact been reached. At the same time it has also been laid down that it is not open to a party to avoid the compromise admittedly entered into by it, in proceedings under Order 23, Rule 3 by alleging fraud and that, if the compromise was in fact arrived at, the additional question whether it was avoidable at the instance of one of the parties on grounds similar to fraud or misrepresentation isforeign to the proceedings under Order 23, Rule 3 and cannot be considered in those proceedings. It is not easy to follow how a Court can come to a finding that the agreement has been reached between the parties without considering the allegation of fraud, coercion or undue influence made by one of them. Is it that the satisfaction of the Court is confined only to the proof of the signatures of the parties on the document containing the terms? Even in spite of the fact that the signature of a party or his consent to the agreement has been obtained by the other party by some illegal means, namely, by fraud, undue influence or coercion, would the Court be able to hold that there is an agreement? With respect, we are unable to understand the principle of law laid down in those two decisions. It has been already observed that if the consent of one party is obtained by fraud, undue influence or coercion, it cannot be said that he has agreed to the term to which his consent has been so obtained and consequently the Court has to come to the finding that there is no agreement. If it is required under Order 23, Rule 3 that the Court has to be satisfied as to whether an agreement has in fact been reached as held by the Allahabad High Court in the above two decisions, we are of the opinion that an enquiry by the Court for such satisfaction will include also an enquiry into the allegation of a party that his consent to the terms of the agreement has been procured by fraud, undue influence or coercion. It is true that fraud, undue influence or coercion makes a contract a avoidable one and not void. But as soon as a party complains about the practice upon him of fraud, undue influence or coercion by another party, he avoids the contract. If the party complains to Court that his signature to a document containing the terms has been obtained by the other party at the point of a revolver, would the Court refuse to make an enquiry into the same on the ground that the agreement is only avoidable and not void? With due respect, we are unable to subscribe to such a bold proposition and, in our opinion, to consider whether or not an agreement has been reached between the parties, the Court will of necessity embark upon an enquiry as to the allegation of a party that his consent to the 'agreement or his signature on the document containing the terms, has been obtained by fraud, undue influence or coercion. It is true that the party complaining has his remedy by way of suitHe can obtain a declaration that the con-tract is vitiated by fraud, undue influence or coercion and, as such, is not binding upon him. In our opinion, to drive such a party to a separate suit will be against justice, equity and good conscience.

10. We have already referred to the Privy Council decision in Seth Kevaldas's case (AIR 1923 PC. 178) which also lends support to the view that such an investigation should be made. In these circumstances, we hold that the term 'lawful agreement' does not include within it an agreement which is vitiated by fraud, undue influence or coercion, In other words, it excludes such an agreement and also an agreement which on the face of it is void.

11. Even if it is assumed that such an enquiry into the allegations of fraud, undue influence and coercion is not permissible under Order 23, Rule 3, the Court has undoubtedly the inherent power to investigate such allegations under Section 151 of the Code of Civil Procedure. In our opinion, it is a fit case where such power should be exercised in view of the facts found hereafter,

12. Now we may consider whether the defendants were compelled to sign the documents, Exts. 1 and 1 (a) under threat and coercion as alleged. In the application under Order 23, Rule 3, the plaintiff has not disclosed the circumstances under which the defendants put their signatures in the letters, Exts. 1 and 1 (a), containing the terms and conditions. The circumstances have been stated by the defendant No. 1 Sulekha Kundu in her petition of objection and the same also transpire from The evidence of witnesses examined in behalf of the plaintiff.

13. On September 14, 1974, the husband of the plaintiff filed a petition of complaint before the Additional Chief Metropolitan Magistrate, Calcutta against the defendant No. 2 Kestodas Kundu on a charge under Section 420/403, I.P.C. The learned Magistrate directed the O. C., Shyampukur P. S. to take cognizance and to investigate. As directed, the Shyampukur P. S. started a case being Case No. 363 dated 12-10-1974 under Section 420/405, I.P.C. A warrant of arrest was also issued against the defendant No. 2, and the police looked for him for his arrest. Somehow or other the defendant No 2 came to know that he was being wanted by the police, and on the materialdate, i.e., on October 13, 1974; he was found in the Shyampukur P. S. at about 2-30 P.M. There is some dispute as towhether he was brought to the Polite Static, under arrest. While according to the defendants he was arrested, it was denied by the plaintiff's husband in his evidence. P.W. 6 Bimal Chandra Biswas, the Sub-Inspector of Police is silent on the point. We do not, however, think that the dispute centered round the point has any bearing on the issue with which we are concerned We may proceed on the assumption that, the defendant No. 2 called at the police station of his own as he was being looked for and wanted by the police. But curiously enough the plaintiff's husband Agarwal, his lawyer in the Criminal case, Mr. J.N. Banerjee, Advocate, one Mr. Lodge, a private detective engaged by the plaintiff's husband and another person came to the police station shortly after the defendant No. 2. P.W. 1 Mr. Sunil Krishna Dutta, Advocate, the lawyer of the defendant No. 2 was sent for. P.W. 1 has been examined by the plaintiff, for it has been alleged that the original letter and its duplicate copy, Exts. 1 and 1 (a) containing the terms and conditions of the alleged agreement were 'detained' by him.

14. At the very outset of his evidence P.W. 1 Sunil Krishna Dutta says that the documents, Exts. 1 and 1 (a) were entrusted to him by Agarwal and Kesto-das Kundu with the instructions that in case the conditions of the agreement were fulfilled, he was to hand over a copy thereof to each of the parties, but if the agreement fell through he was to destroy the documents in the presence of both the parties. Further, his evidence is that on October 13, 1974 which was a holiday, while he was taking his meal, a gentleman came to his residence and informed him that the defendant No. 2 who had been arrested by the police and detained in the Shyampukur P. S. wanted his presence. On going to the police station he found that the said persons including the plaintiff's husband, his lawyer P.W, 2 J. N. Banerjee and Lodge, the private detective were present. He learnt that a talk of settlement was going on. He was informed by the police officer that the defendant No. 2 had not been officially booked by him, that as it was a holiday the Metropolitan Magistrate would be available only upto 3 P.M. and that if the parties would not settle up the matter by that time, he would place the defendant No. 2 in the lock up as there was no timeto produce him before the Magistrate, The Police Officer also told P.W. 1 that he could immediately produce the defendant No. 2 before the Magistrate, but in case of further delay it would not be possible and that if there was no settlement he would be put in the lock up. It is the evidence of P.W. 1 that he found the defendant No. 2 in a mentally disturbed condition and he advised him to settle the matter in order to avoid police custody. So the defendant No. 2 signed the agreement (Ext. 1), but it is the positive evidence of P.W. 1 that the terms incorporated in Ext. 1 are not the terms actually agreed upon; the difference was as to the payment of money. It is clear from his evidence that the defendant No. 2 did not agree to Clause (7) of the terms of settlement. He did not see Sulekha Kundu nor did he act on her behalf.

15. After the documents, Exts. 1 and 1 (a) were signed by the defendant No. 2, the same were taken to the residence of Sulekha Kundu for her signatures. It is the evidence of P.W. 1 that Agarwal and Lodge got the documents signed by Sulekha Kundu. It has, however, been alleged by Agarwal in his evidence that he, Satyendra Nath Kundu, the husband of the defendant No. 1, Lodge and the defendant No. 2 took the documents to the house of Sulekha Kundu While there is some dispute as to the presence of the husband of the defendant No. I in the police station, there is no dispute that the defendant No. 2 was not released until Agarwal and Lodge came back to the police station from the house of Sulekha Kundu with the documents bearing her signatures. It appears that Agarwal had taken with him to the residence of Sulekha Kundu one Amal Kumar Pal, J. P. who attested her signatures on the documents. It has been alleged by Agarwal that Amal Kumar Pal read over and explained the agreement to Sulekha Kundu who, after consulting her husband, signed the same. Sulekha Kundu has, however, denied that the document was read over and explained to her by Amal Pal. She has also denied the presence of her husband at the police station or that she signed the documents after consultation with her husband. It is her evidence that when she came to know of the arrest of the defendant No. 2 she was very much worried. She says that it was represented to her by Agarwal, Lodge and Amal Pal that if she put her signatures on the documents, her husband's elder brother, that is, the defendant No. 2, wouldbe released. As she was very much eager to have the defendant No. 2 released, she put her signatures without knowing the contents thereof.

16. The plaintiff has also examined her lawyer in the said Criminal case Mr. J.N. Banerjee, Advocate (P.W. 2). He was also present in the police station. Both Agarwal and P.W. 2 J. N. Banerjee alleged in their evidence that the terms were settled in the morning of October 13, 1974 at the residence of the latter between Agarwal and the defendant No. 2 and that, in the police station the defendant No. 2 alter consultation with his lawyer Sunil Krishna Dutta, eigned the documents. The plaintiff has also examined P.W. 3 Shew Lal Shah to prove that the settlement was arrived at in the house of J. N. Banerjee. It is their evidence that the defendant No. 2 agreed to Clause (7) of the terms and to return the sum of Rs. 16,000 within a day or two. They denied that there was any talk for payment of a further sum of Rs. 20,000 by the plaintiff to the defendants.

11. It is clear from the evidence of the witnesses examined in the case that the documents, Exts. 1 and 1 (a) were typed and the same were signed by the defendant No. 2 and the defendant No. 1 during the few hours the former was in the police custody, and so long as the same were not signed by the defendant No. 1, the defendant No. 2 was not released. According to P.W. 1 Sunil Krishna Dutta, the defendant No. 2 did not agree to all the terms and he signed the same as advised by him in order to avoid detention in the police lock-up. The evidence of Sulekha Kundu has already been noticed and according to her she executed the documents without any knowledge of the contents thereof and without any legal advice, solely for the purpose of getting the defendant No. 2 released,

18. The learned Judge has observed that P.W. 1 Sunil Krishna Dutta is the only disinterested and independent witness and there is no reason to disbelieve him. After considering the evidence of the witnesses, we are of the view that the learned Judge is perfectly justified in making that observation. It transpires from the evidence of P.W. 2 J. N. Banerjee, the plaintiff's Advocate in the Criminal case against the defendant No. 2 that he was in the police service and he retired in 1972 as an Inspector of Police. His house is opposite to the Shyampukur P. S. and it appears from P.W. 6, the Sub-Ins-pector of Police, that they were known, to each other for the last three or four years, Mr. Banerjee is a chance witness, for his evidence is that at about 2-30 P.M. he went to the police station in connection with some other case. But he does not. remember in connection with which matter he had been to the police station. Agarwal also came to the police station in search of his lawyer P.W. 2 J. N. Banerjee. Besides P.W. 2 and Agarwal, Lodge and another person had been to the police station for and on behalf of the plaintiff and her husband. It has been already noticed that Lodge who is a private detective was engaged by Agarwal to assist J. N. Banerjee. It seems to us that the visit of these persons to the police station soon after the arrival of the defendant No. 2 there, was not at all accidental but pre-arranged. We believe the evidence of P.W. 1 that the defendant No. 2 had to sign the documents under the threat of his being placed in the lock-up. We also believe the evidence of Sulekha Kundu that the documents were not read over and explained to her and that she was compelled to sign the documents on the representation made to her by Agarwal and Amal Pal that if she put her signatures on the documents, the defendant No. 2 would be released. It follows, therefore, that solely for the purpose of getting the defendant No. 2 released from police custody, she had to sign the documents without any legal advice and without understanding the contents thereof. It is significant to be noticed that Amal Pal has not been examined. The documents do not bear any endorsement by him that he read over and explained the same to her. We are unable to accept the plaintiff's case that the terms were agreed to and settled by and between Agarwal and the defendant No: 2 at the residence of J. N. Banerjee. Even assuming that the defendant No. 2 had agreed to the terms and signed the purported agreement out of his own free will, the same will not, in the least, bind Sulekha Kundu. In view of that difficulty, Agarwal has come with an untrue-story that P.W. 1 Sunil Krishna Dutta was also acting on behalf of Sulekha Kundu. It has been already stated that P.W. 1 has denied that he acted on her behalf and we have no reason not to accept the same. In our opinion, Agarwal brought about the existence of the documents, Exts. 1 and 1 (a) by threat and coercion on the defendant No. 2 and Sulekha Kundu. Much has been said about the presence of her husband in the policestation and also at her residence at the time she signed the documents. In her petition of objection there is such a statement, but during her cross-examination, she was not confronted with the same. She did not, therefore, get an opportunity to explain why such a statement was made by her in the petition of objection. But even assuming that her husband was present at both places, in our opinion, that is quite irrelevant, for she did not sign the documents out of her own free will but as found above, she was compelled to sign the same We are: unable to believe Agarwal that she executed the documents after consultation with her husband. Moreover, there is no evidence that there was any negotiation between the plaintiff or her husband and the defendant No. 1 Sulekha Kundu. In any event, the circumstances under which she had to execute the documents lead to the only inference that she was made to sign against her will.

19. Not only that Sulekha Kundu had to sign the agreement under compulsion of circumstances in which she was put, but she had no independent legal advice. It is, however, said on behalf of the plaintiff that it is not the inflexible rule of law that whenever a pardanashin lady executes a document it will be branded with illegality and invalidity if she had no independent legal advice. In support of this contention, Mr. Dutt has placed strong reliance on the observation of the Privy Council 'that the lady knew perfectly well what she was doing, and that in every sense the act was her own act' (Mahomed Buksh Khan v Hosseini Bibi, (1888) 15 Ind App 81 (PC)). This observation was made by the Privy Council in the facts and circumstances of the case before it, for before making the observation it was made clear by their Lordships that they did not desire to say a word which could interfere with the settled principles on which the Court acts in considering the deeds of pardanashin ladies or could tend to lessen the protection which it is the duty of the Court to throw around those who are unable to protect themselves. Even the said observation quoted above does not help the contention of Mr. Dutt. It is in evidence that she did not know the contents of the documents, Exta 1 and 1 (a), for nobody explained the same to her. It cannot, therefore, be said that 'in every sense the act was her own act' In Hem Chandra v. Suradhani Debya, AIR 1940 PC 134, an oldpardanashin lady having considerable capacity for business executed & mortgage deed which was read over to her, though it was not explained. She understood its effect except that she did not understand that she was making herself personally liable to repay the money borrowed. It was held by the Privy Council that if for want of explanation the lady did not understand an important feature of the transaction, it could not be held that her mind and free consent went with her act in executing the deed and therefore the mortgage did not bind her at all. This decision fully supports the view we have taken on the facts of the present case. The law has been clearly laid down by Lord Shaw in Kali Baksh Singh v. Ham Gopal Singh, (1913) 41 Ind App 23 (PC). His Lordship observed as follows:--

'In their Lordships' opinion there is no rule of law of the absolute kind here indicated. The possession of independent advice, or the absence of it, is a fact to be taken into consideration and well weighed on a review of the whole circumstances relevant to the issue of whether the grantor thoroughly comprehended, and deliberately and of her own free will carried out, the transaction. If she did, the issue is solved and the transaction is upheld; but if upon a review of the facts--which include the nature of the thing done and the training and habit of mind of the grantor, as well as the proximate circumstances affecting the execution-- if the conclusion is reached that the obtaining of independent advice would not really have made any difference in the result, then the deed ought to stand.' A similar view has been expressed in a later decision of the Privy Council in Farid-Un-Nisa v. Mukhtar Ahmad, 52 Ind App 342 = (AIR 1925 PC 204). In the case before us, Sulekha Kundu was not explained the terms of the agreement and she was not aware of the same. In our opinion, on a review of the facts, the execution of the agreement which includes terms not free from doubt, and in any event, an agreement to lease, the duration of which is not easily comprehensible, required legal advice even for a man of business, far less an illiterate pardanashin woman.

20. In considering whether there was really an agreement between the parties in adjustment of the suit, we may once more refer to the evidence of P.W. 1 Sunil Krishna Dutta that the documents, Exts. 1 and 1 (a) were entrusted to himby Agarwal and the defendant No. 2 with the instruction that in case the conditions of the agreement were fulfilled, he was to hand over a copy thereof to each of the parvies, but i the agreement failed through he was to destroy the documents in the presence of both the parties. He has also said that the defendant No. 2 did not agree to Clause (7) of the terms, ft follows from his evidence that there was no concluded agreement between the parties. His evidence finds support from certain facts which will be stated presently. On October 13, 1974, that is, the date on which Exts. 1 and 1 (a) were executed, an application for injunction filed by the plaintiff was pending. Even after the alleged agreement or compromise between the parties, the plaintiff did not bring to the notice of the Court of such agreement or compromise; on the contrary the plaintiff prayed for adjournment of the hearing of the application for injunction on more than one occasion. The hearing of the application was fixed on September 26, 1974, but on that date, on the prayer made on behalf of the plaintiff it was adjourned to November 27, 1974. Before that date, i.e., on November 21, 1374, on the plaintiff's application the hearing was adjourned to December 11, 1974. On that date the plaintiff filed her affidavit-in-reply. The hearing was further adjourned to January 9, 1974 and thereafter to January 14, 1975 both at the instance of the plaintiff. On the last mentioned date the application under Order 23, Rule 3, was filed by the plaintiff. It is strange that the plaintiff did not at the earliest opportunity file the application under Order 23, Rule 3 when according to her the suit was adjusted by compromise. Nor did she disclose the alleged compromise in any of her adjournment applications or in her affidavit-in-reply. No ex-planation is forthcoming from the plaintiff. One of the terms of the compromise is that contained in Clause (9) which provides for the withdrawal by the plaintiffs husband of the criminal case against the defendant No. 2 under Section 420/406, I.P.C. before the Additional Chief Metropolitan Magistrate, Calcutta. After the alleged compromise was arrived at, it was only natural that an application for the withdrawal of the criminal cast in terms of Clause (9) should have been made before the learned Magistrate, but no such application has yet been made and the criminal case is still pending. P.W. 2 J. N. Banerjee in his evidence says that as the agreement has not been acted upon, hedid not file any application in terms of Clause (9). Such an explanation is difficult to accept. The fact that the plaintiff kept the alleged agreement or compromise away from the notice of the Court and the further fact that the plaintiff did not act upon it, lead to the only conclusion that there was no final settlement between the parties as said by P.W. 1. It is not understandable why after the agreement was executed by both parties, the same would be kept in the custody of the lawyer of the defendant No. 2. There is also no explanation for the same. In her application under Order 23, Rule 3, it has been alleged by the plaintiff that Exts. 1 and 1 (a) were 'detained' by P.W. 1 which implies a suggestion that by keeping the said documents with him P.W. 1 acted illegally against the will and interest of the plaintiff and her husband. But no such allegation was made in the evidence of the plaintiff's husband nor was any suggestion made to P.W. 1 in that regard. We fully believe the evidence of P.W. 1 that the documents, Exts. 1 and 1 (a) were kept with him as there was no concluded contract between the parties. Therefore, as there was no agreement between the parties, the question of adjustment of the suit in whole or in part does not arise.

21. It has been held by the learned Judge that the agreement is hit by Section 23 of the Contract Act as one of the terms is opposed to public policy. In our opinion, there are cogent reasons for the said finding of the learned Judge. We have already referred to Clause (9) of the agreement which is as follows:

'That the criminal case filed by her husband Krishna Kumar Agarwal alias Kanoria against Shri Kestodas Kundu under Section 420/406, I.P.C. before the A. C. M. M. Calcutta shall be recorded as compromised on the above terms and conditions.'

Under Section 23 of the Indian Contract Act, every agreement of which the object or consideration is unlawful is void, it provides inter alia that the consideration or object of an agreement is unlawful when it is opposed to public policy It is now well settled that where the consideration of an agreement is the withdrawal and non-prosecution of a criminal case, the agreement is opposed to public policy and is void (See Narasimharaju v. Gurumurthy Raju, : [1963]3SCR687 ). In the instant case, the circumstances discussed above and Clause (9) of the terms providing for the withdrawal of the criminalcase against the defendant No. 2, clearly indicate that Clause (9), that is, the withdrawal of the criminal case is one of the considerations for the agreement. It is, however, contended on behalf of the plaintiff-appellant that the offence under Section 420, I.P.C. is a compoandable offence and, as such, the parties having compounded the criminal case, it cannot be said to be opposed to public policy. On behalf of the appellant much reliance has been placed on a Bench decision of this Court in Deb Kumar v. Anath Bandhu, 35 Cal WN 26 = (AIR 1931 Cal 421). In that case, it has been held that where the transaction between the parties involves a civil liability as well as a criminal act, & contract for the payment of the civil liability in respect of which the criminal action may be or even has been brought, is not of itself opposed to public policy. The facts of that case, are quite different from those of the present case. In that case, a criminal action for breach of trust was brought against the defendant who was a Tahsildar of the plaintiff. During the pendency of the case, accounts were adjusted between the parties and of the amounts found due from the defendant, a part was paid in cash, for a part a kobala was executed and for the balance the bond in suit was given. Two days after the registiation of the documents, the criminal case was withdrawn. It was held that the consideration for the bond was a pre-existing civil liability based upon an adjustment of accounts between the parties and, as such, it was not illegal within the meaning of Section 23 of the Contract Act. The facts stated above show unmistakably that the consideration for the execution of the bond was not the withdrawal of the criminal case, but the adjustment of the civil liability of the defendant. Consequently, such an agreement was not void as opposed to public policy. But in the instant case before us, one of the considerations was withdrawal of the criminal case against the defendant No. 2.

22. It is, however, contended on behalf of the appellant that the offence under Section 420, I.P.C. is a compoundable offence. Our attention has been drawn to the aforesaid decision of the Supreme Court and it is submitted that in that decision the offence was a non-compoundable one and so it was ruled by the Supreme Court that where the consideration for an agreement was the withdrawal of a criminal case consisting of a charge of a non-compoundable offence,the agreement was void as opposed to public policy. It is said that as the ultimate charge against the defendant No. 2 is under Section 420, I.P.C. which is c compoundable offence, the agreement providing for the withdrawal of the same as one of the considerations will not render the agreement void. It is not disputed before us and that is also the evidence of P.W. 6, the Sub-Inspector of Police, that at the time Exts. 1 and 1 (a) were executed, the charge against the defendant No. 2 was under Section 420/406, I.P.C. The offence under Section 406, I.P.C. is a non-compoundsble offence and by Clause (9), the withdrawal of the criminal case which included a charge under Section 406 was made the consideration for the agreement Such an agreement is undoubtedly opposed to public policy and is void under Section 23 of the Contract Act. The learned. Judge is perfectly justified in coming to the said finding

23. For the reasons aforesaid, we affirm the order of the learned Judge dismissing the plaintiff's application under Order 23, Rule 3 of the Code of Civil Procedure and dismiss the appeal with costs. No separate order need be passed in the connected Rule, which shall be deemed to have been disposed of without any order as to costs,

Sharma, J.

24. I agree.


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